Post-Election Realities for Progressive Reform

The Open Society Institute and the Reebok Human Rights Award Program held a panel discussion on where the movement for progressive reform stands, what opportunities and challenges exist in light of the 2004 election, and what strategies are being used on both the left and the right. Moderated by OSI Vice President and Director of U.S. Programs Gara LaMarche, the panel included leading lawyers, advocates, journalists, and funders who offered perspectives on a range of civil and human rights issues, from the courts to criminal justice to civil liberties to equality for the LGBT community.

LaMarche began by asking the panel: In the wake of last November s election and in light of the current administration s efforts to, for example, privatize social security or legitimize torture is it "all bad news" on the front of human rights and civil liberties for the next four years? Or are any affirmative opportunities available now for progressives?

Tanya Coke, a program development consultant currently with the ACLU, responded that although conservatives have control of Congress and the courts, in many ways they don t have the public on a lot of the issues that we care about, like social security reform. This creates opportunities to do work around specific issues such as economic justice. But it s not enough for us to talk about issues, Coke added. We need to find ways to connect an agenda of piecemeal issues and organizations to a larger platform. In some ways, the loss of the election has created a change or die moment, she said, in which progressives need to change affirmatively how they communicate and how they define their interests.

John Kowal, Director of Constitutional and Legal Policy at OSI, remarked that a lot of losses have been incurred with regard to issues like same-sex marriage. However, he pointed out, if we look beyond the hastily called campaign results, in less than two years there has actually been a tremendous transformation in the way that Americans view this issue. According to exit poll results, the number of people who support same-sex marriage and of those who support civil unions totals over 60 percent of voters. This is a significant change over even a year before, Kowal said, and it demonstrates that many people can be persuaded to change their minds if the issues are clearly communicated to them.

LaMarche pointed out that, until very recently, torture was regarded as a settled human rights principle. Yet, as a result of Abu Ghraib, Guantanamo, and Afghanistan, it has been thrown into question again. Why, he asked, despite the fact that the issue resonated so much internationally, was it barely raised during the election?

Emily Bazelon, senior editor at Slate and a Soros Justice Media Fellow, responded by citing the importance of figuring out how to explain to the public that torture has consequences contrary to American interests. In countries where there is already some distrust of the United States, torture cases only provide proof that the U.S. is not an example to be followed. One possibility for opportunity exists in the democratic opening up taking place now in some Middle Eastern countries, Bazelon said, allowing the voices of those who live there to be taken into account.

It s a little dispiriting to have to resort to utilitarian as opposed to moral arguments against torture, LaMarche remarked. On the one hand we say we need to talk about values more, and what is more fundamental than the idea that we shouldn t torture people? But, he noted, Brown v. Board of Education established a precedent of referring to international law and opinion.

LaMarche asked whether, in light of the attention Abu Ghraib and similar episodes have brought to bear on abuses in the domestic prison system, there is a silver lining a way to push for reforms of the U.S. criminal justice system.

Vanita Gupta, assistant counsel at the NAACP Legal Defense and Educational Fund, expressed concern that we in the U.S. are actually losing progressive values, and cited the fact that more and more African American churches are supporting conservative agendas. The election showed that we have ceded religion to the right, she said, and that values of tolerance have been lost.

The potential opportunity, then, is for progressives to take a step back and to try to come up with long-term plans and a long-term vision of how to reclaim values like the civil rights agenda. In a lot of ways it s about marketing our issues and agenda, Gupta said. Although Abu Ghraib provided compelling documentary evidence, progressives failed to capitalize on it politically. In particular, they failed to adequately convey their narratives to the news media. We re not speaking to a wide enough audience, Gupta said.

Referring to the fact that the Abu Ghraib photographs were widely seen by the public yet didn t lead to political change, La Marche asked: If we re failing in communications, how could we be doing better?

The torture issue is a complicated one, Coke replied. People don t see it in purely legalistic terms; they tend to see America as under attack and at war. Progressives need to mainstream the issue more. The only people talking about torture have been the international human rights community, she said; other kinds of organizations need to link the issue to domestic concerns and to our own interests.

You have to look at Republican damage-control that was done in response to the Abu Ghraib scandal, Kowal noted. People like Rush Limbaugh got out there quickly with the message that it was basically like a fraternity hazing. It was smart because people are looking for a way to rationalize these disturbing images. The progressive response was unclear, other than that it s wrong.

Moreover, the public needs to be made aware that torture does not work, Kowal said, and that prisoners will say anything under torture.

Bazelon agreed, citing the fact that a lot of people in the military and intelligence communities know that torture does not work. These are credible spokespeople, she said, and progressives should be much better able to take advantage of this.

Noting that a number of Reebok and Soros justice fellows are involved in the movement to apply international human rights standards in the U.S., LaMarche asked: Is this a wonky or marginalized issue, or is more going on?

Coke replied that conservatives are paying close attention to the issue, and that is why we need to pay attention to it. It is a huge potential tool to do progressive work, she said. Conservatives are well organized on the international legal issue, and they are taking a pre-emptive strategy. Coke cited the disparaging remarks against the International Criminal Court made by Bush during the election debates.

Yet, she noted, recent polls show that a majority of people favor of basic human rights protection, even if it s not part of a country s domestic laws. Progressives therefore can and should do more to counter conservative arguments that international law is a threat to America.

Gupta said she sees hope in the fact that progressives are frequently citing international law claims in domestic civil rights litigation, particularly in the South. Courts may throw these claims out now, she said, but in the long term a change in awareness can take place.

Our job is to advocate these ideas, Coke added. Judges will only consider them when progressives talk about them frequently and demonstrate that they are relevant.

It seems likely that Bush will be able to replace two or three Supreme Court judges, LaMarche said. Consequently, do we have any chance of a court that will be somewhat hospitable to human rights and civil liberties claims?

An epic struggle could soon take place over the role of the filibuster, Kowal noted, in which a majority of the senate could ban this practice (an action known as the nuclear option ). This is more important than any vote that comes later, because if that check is eliminated, Kowal asked, what s to stop Robert Bork from being nominated?

There is an opportunity to affect what happens, he said, if progressives make this as key an issue for them as the religious right does. It offers a chance to frame an argument about the future of the U.S. legal system.

Progressives are basically bystanders to political power at this point, Kowal said. We have to see the current struggle as within the Republican Party, a coalition of libertarians, social conservatives, and fiscal conservatives. The Left needs to build links with those conservatives such as Kennedy and O Connor, or Hagel and McCain who don t want to push things in a radical direction. That is the only hope of stopping the most radical nominees.

LaMarche closed with the question, How might progressives begin to change the discourse?

Gupta responded that one of her greatest concerns is the lack of organization among progressives. They need to be asking, she argued, What are the priorities for the next ten or fifteen years? Gupta also cited the problem of too much talking amongst ourselves. Progressives need to reach out and to humanize their issues, she said, for example by presenting the victims of the criminal justice system as real people.