I think Eugene Volokh is right that Oregon’s proposed law that would define blocking traffic for political purposes as “terrorism” and subject it to life imprisonment won’t pass, in part because the “right-to-life” crowd won’t let it. He’s probably also right that it wouldn’t pass even if it were somehow limited to anti-war protesters. But I think the reason Eugene offers (in reply to Matthew Yglesias) for being confident of that doesn’t hold water:
Sure, if one assumes that the majority of Americans utterly loathe antiwar demonstrators and want to punish them more than, say, rapists or armed robbers — which means that the majority of Americans are both radically intolerant of dissenters and utterly lack moral proportion — then one could infer that such a law would be passed. But I just don’t make that assumption, and I wonder what foundation there is for making it.
Here’s one way to unpack that argument: In a democratic system, legislators tend to vote only for things that the electorate supports; voting for something your constituents are against tends to be bad for your political health. Since most people don’t support life in prison for blocking traffic in a war protest, the legislature wouldn’t pass such a law.
Unfortunately, that isn’t right. Most elections are referenda on individuals, not on issues. (Ask Al Gore.) If casting a particular vote makes a legislator seem, or makes him vulnerable to being portrayed as, not the right sort of person, it can cost him his job even if the voters agree with him.
Two examples here.
Permission for doctors to prescribe marijuana to patients when they think it appropriate is overwhelmingly popular, commanding between two-thirds and three-quarters support in the polls. Yet in state after state, proponents of such permission have been forced t to go the initiative-petition route to get those laws passed directly by the voters. (At the national level, where there is no such process, there has never been so much as a Congressional hearing on a medical-marijuana bill.) Those referenda tend to pass handily. Why didn’t the legislatures of the states involved do the job on their own, given their constituents’ preferences? Why did the Arizona legislature twice pass laws trying to overrule the initiative passed by referendum with a 57% “Yes” vote?
I think the answer is pretty simple. The median voter, if asked to vote directly on medical marijuana, will think about the issue, decide he has sympathy for sick people and trusts doctors, and vote “Yes.” But that same voter, seeing a TV ad demanding “Ask Senator Snort why he voted to legalize drugs” (based, though he doesn’t know it, on a vote for a medical-marijuana bill) might well conclude that Senator Snort is “pro-drug” and vote against him. [The voter might, if sufficiently subtle, draw the same conclusion even if he knew what the legislative issue was; I’m pro-death-penalty, but when I hear a politician talking up execution I think less of him. There’s a strong analogy here to market signaling, as explicated in Glenn Loury’s theory of the origins of political correctness.]
The more recent example is the Homeland Security bill. I doubt that many voters thought that establishing that department would really make them a lot safer, or that the details of its personnel-management system were matters of urgent public concern. But Max Cleland’s opponent managed to turn his vote to retain the merit system in Homeland Security into evidence that he lacked “the courage to lead,” and Cleland is now a former Senator.
Lyndon Johnson summed it up when he told a young aide (I’m paraphrasing from memory here): “Once you’ve figured out the clever explanation you could give the voters for casting a vote that, at first glance, doesn’t seem right to them, don’t cast that vote.”
So I’m not at all confident that it would be politically safe to vote against something called the Oregon Terrorism Prevention Act, whatever its actual provisions were.
My opponent no doubt had good reasons for preferring the rights of terrorists to the rights of ordinary Oregonians to be free of terror. Perhaps he can explain them at the next dinner of the Ayyy Cee Ell Yew. But I’m not really very interested in them, are you? Don’t you want a representative who’s just plain against terrorism?
In fact, it’s easy to imagine a group of conservative legislators framing such a bill specifically to make their opponents either betray their convictions by voting for it or destroy themselves politically by voting against it. It’s been done.