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Lose-Lose: Cuccinelli vs McDonnell on Health Care Regs All Downside for the AG

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( – promoted by lowkell)

by Paul Goldman

There is no reason to doubt the Office of Attorney General’s position relative to the proposed Virginia abortion clinic regulations as a matter of their reading of the law. As I understand it, the big issue regards whether the key regulation regarding medical facilities providing abortions must be applied retroactively, or whether it can be only prospectively. My understanding of administrative law and the relevant statute suggests the AG has a defensible, but not persuasive, legal position.

Reasonable people can often reasonably disagree on what the law requires: I presume this is one of those common situations which the Governor and his able legal team can resolve. In that sense, no big deal.  But in terms of the politics of 2013, and specifically the governor’s race, the decision by the AG to object to the new regulations could wind up being a very big deal.

Why?

As a matter of the politics, Governor McDonnell will either agree with Cuccinelli, or he will reject the AG’s position. Even if the Governor finds a “third way” middle ground, it still amounts to rejecting the AG’s position on a very sensitive issue.

To the extent the Governor rejects the AG’s position, it will tend to paint Mr. Cuccinelli as out of the mainstream on an issue that’s been of great importance in Virginia gubernatorial elections since 1989.

 

If McDonnell does find a middle-type ground here, then the “loss” politically for the AG will be small and manageable. But to the extent McDonnell is seen as flat-out rejecting the AG’s position, it could prove a very big loss to Cuccinelli should he win the GOP gubernatorial nod.

Suburban women are a key swing vote in a Virginia Governor’s race. We have already seen how McDonnell may have lost a chance to run for Vice President because he failed to remember this truism during the last GA Session. Instead, McDonnell allowed himself to get sucked into a losing fight on women’s issues, specifically the mandating of pre-abortion “transvaginal ultrasounds.”

The reality is that no one has been elected Virginia Governor in the modern age who has been viewed as wanting to use the power of the Governorship to outlaw the right to choose. Philosophical opposition is fine, even some legislation is okay, but a flat-out effort to make it as hard as possible for women to actually exercise their right to choose is another matter.

Thus the problem for Cuccinelli should Governor McDonnell be seen as rejecting the AG’s opposition to the regulations at issue. Governor McDonnell is known for being anti-abortion. The regulation issue highlights a Governor’s unique power in this area, something not well known to voters.

So if Governor McDonnell’s actions ultimately help to highlight the anti-abortion power uniquely held by the Governor, this creates a potentially damaging political issue for Cuccinelli in 2013.

That is why I say: It is lose-lose for Cuccinelli. He already has most anti-abortion voters in the GOP. The challenge is outside the GOP. Historically, whenever the GOP candidate for governor has been able to hold his own with suburban women, he has won big: Dalton, Allen, Gilmore and McDonnell all did so. On the othe rhand, whenever the GOP candidate for governor has slipped up with suburban women, he has tended to lose: Coleman, Durrette, Coleman, Earley, and Kilgore.

Today, polls already show Cuccinelli having potentially serious image issues with this group. Yes, it is admittedly early in the process, but it’s never too early for a candidate’s image to start being seen in an adverse light.

Let’s see how the Governor lands on this issue. It is tricky for him. But depending on how he does land, it could become even trickier for Attorney General Cuccinelli.