Will Ken Cuccinelli’s “Obamacare” Defeat Help Bill Bolling?

by Paul Goldman

Has Bill Bolling’s underdog campaign been barking up the wrong tree? Contrary to apparently all other Democrats in Virginia, I think the basic professionalism of the Office of Attorney General is being upheld under Mr. Cuccinelli’s “Generalship” in terms of analyzing the pure substance of the law of Virginia. But too often, the politics of the law, and politics generally becomes involved when the AG gets into his PR strategy of being the go-to AG for Fox News, a brilliant PR so far.

For example, Mr. Cuccinelli’s claim that colleges cannot protect gay and lesbian students from sexual discrimination was not an official opinion of the Office of Attorney General, but a letter sent by Mr. Cuccinelli under his own name. Mr. Cuccinelli knew the Virginia law, but figured out a way to make it a national story to help spread the Cuccinelli brand. So too with his brilliant move to gain national fame with his first-out-the-box law suit against Obamacare.

That’s right, Obamacare: Why wouldn’t the President want to have his name on his singular achievement? Believe me, FDR and LBJ would have loved to have their names on Social Security and Medicare directly. Which raises the issue: Why didn’t Ronald Reagan and those opposed to Medicare call it Johnsoncare? The reason: It was hugely popular (back then “The Gipper” was part of a very fringe anti-Medicare posse).

The shrewd Californian realized his political mistake. When running for President, he defended his opposition on the grounds he had proposed a better alternative. Then as President, he proposed a huge tax increase to save Medicare from going bankrupt. Believe me, he would loved it if the Democrats had begun calling it Reagancare.

But back to Mr. Cuccinelli’s brilliant PR strategy of getting to the courts first with an anti-Obamacare lawsuit. It made him the most prominent AG in the country, even though he was the rookie of the bunch! A PR genius which helps explain his huge lead in the polls against Mr. Bolling, a lightly known figure in his own GOP despite 7 years in statewide office.

Every other PR executive in America has to be thankful he went into law, not marketing. Otherwise, the Cuccinelli agency would have the highest gross volume in the industry by far.

But he chose to an AG. In that regard, an AG is supposed to win legal cases, especially the ones he brings. This requires more than being popular on Fox News: They are not a court of record in America, much less in Virginia. At least not yet. I can see a President Romney appointing Laura, or Sean or Bill, even Judge Judy to the Supreme Court. Just kidding — I think.

Which raises the issue that for some reason Mr. Bolling, who at this point needs not one but two life preservers to survive politically, refuses to touch: the record of Ken Cuccinelli,  the “Have Brief, Will Travel to Any Newsroom” AG.

Mr. Cuccinelli can’t really take credit for the professionalism of the AG’s senior staff on opinions and the like, since he has said he leaves them alone to do their thing. True, he is the boss and appoints the top executives of the state’s top lawyer. But Mr. Cuccinelli is running as the rebel, not the bureaucrat. Even AG Jim Gilmore couldn’t screw up the AG’s office. Those folks are professionals by and large.

Indeed, Cuccinelli’s considerable political clout in the GOP is based on this “Have Brief, Will Travel and Kick Your Liberal Ass” image. He is the X-Man with the special laser to vaporize Liberals. Except: As they say, Mr. Cuccinelli is shooting blanks.

The Obamacare case is just the latest example: Mr. Cuccinelli’s big rep is based on the smallest record of success. Thus the puzzle relative to Mr. Bolling given the level of his support.

Logic suggests that to have any chance of beating Mr. Cuccinelli for the GOP gubernatorial nomination, the LG has to puncture the AG’s image as the one man in VA the “liberals” don’t want to mess with. The truth is the opposite: when Cuccinelli or his surrogate bursts into the courtroom door riding that PR wave, the lawyer for the liberal defendant breaks into a big smile. Or as they say in Texas: Mr. Cuccinelli has proven to be “all hat and no cattle.”

For those more at home on a “dude ranch”, not out there on the open range, let me put it in your language: Mr. Cuccinelli leaves his best game in the locker room. Once he suits up and steps into the courtroom, he is SuperFly, not SuperBad. Obamacare is just the latest in a long line of high profile defeats for the AG.

To be sure, he was one vote away from being the most celebrated conservative lawyer in America, the guy who first had the guts to challenge Obamacare. That’s the thing about building your reputation on press releases: you are just one press release away from being “all hat and no cowboy” another way of saying the thing.

This isn’t to suggest the AG is a bad lawyer; indeed I think he is far smarter about matters legal than his critics claim. He has a top-rate legal mind in terms of grasping legal concepts, and anyone who says differently is simply displaying their own legal ignorance.

Similarly, Chief Justice Roberts is a brilliant legal mind, but there isn’t a law professor in the country who believes his analysis of the taxing power was particularly persuasive. His vote decided the Obamacare case, not his legal reasoning. Even the other four pro-Obamacare votes had to swallow hard in order to accept it, given the plain language of what the Congress intended to do (and believes it did do).

But they took Mr. Roberts’ gift – as they should have – and got the opinion filed before the Chief Justice had a chance to change his mind, which he could have based on his own logic.

So yes: Mr. Cuccinelli rightly feels that his chance to be a hero was snatched from him. He had been certain the five “conservative” jurists would bring him victory in the end. But he lost. Again.

So I ask: When does Bill Bolling plan – if ever – to start making the case that Mr. Cuccinelli is not a “closer,” no Eli Manning in the fourth quarter when they decide winning and losing? It is true that Mr. Bolling doesn’t have much of a record on that score either.  But since he is such an underdog, the rules of the game make Cuccinelli the focus.

Cuccinelli, in the famous words of Governor Mills Godwin, is a “very eloquent spokesman for his point of view.” The AG is a PR genius: he can squeeze more “ink” out of an issue than any elected official working in the State Capitol, full or part time; indeed, all of them combined. It takes a crisis to get Governor McDonnell on the front page. But as for Mr. Cuccinelli: If he isn’t making news, the press writes a story wondering why not.

So I ask one last time:  When is Bill Bolling going to start running against Ken Cuccinelli – the celebrity who is all hat and no cattle – as opposed to the conservative icon which the AG has cleverly become?

Anyone can sue. But if you want to make change, you have win a few. “Have Brief, Will Travel” has lost more high profile law suits than all the other VA AG’s combined.

In that regard, he has the courage of his convictions, a powerful asset in today’s brutal political world. He is a clever and powerful opponent. Anyone who doesn’t believe that is going to get rolled over.

But you don’t elect a Governor for his talk, you elect him for his walk. On that score, the Obamacare decision exposes the AG’s political Achilles Heel: he does great in the build-up to the great battles he has created, but when the smoke clears, he is generally the loser.

If Mr. Bolling can’t turn that to record to his advantage, then he should drop out of the race for Governor before he embarrasses himself further.