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The Federalist Interview: Ken Cuccinelli

Brad Jackson and Ben Domenech are joined by Ken Cuccinelli to discuss the Hobby Lobby case, religious liberty and the 2013 Virginia governor race.

Brad Jackson and Ben Domenech are joined by Ken Cuccinelli to discuss the Hobby Lobby case before SCOTUS, religious liberty and lessons from his 2013 race for Virginia governor. You can listen to the interview here.

Brad Jackson: Let’s talk about Hobby Lobby. They have a case before the Supreme Court. It had its argument last week. What is this case really about to you? Because to Hobby Lobby I think it’s a matter of their ability to have a conscience as a company. But we’ve seen the left say that this is a case about religious extremism. What is this case? What is the Hobby Lobby case about?

Ken Cuccinelli: That’s because they’re against consciences — if they could outlaw them they would. I mean, let’s face it, it’s actually fairly critical to their whole worldview. I mean your listeners should Google “humanistic manifesto” and read it. It’s six pages on. It doesn’t take very long, and for any of them that haven’t read it, it is the game plan for the vast left wing conspiracy. And if only the right wing conspiracy were so vast we’d be a lot better off, but its part of that playbook. If Hobby Lobby wins it is clearly one of the more poignant stakes in the gut for the left. They cannot tolerate God. They cannot tolerate the acquiescence of government to faith. It clearly has to go the other way in their world view. And that’s a major problem.

On our side I would say that a lot of people, including many on our side meaning conservative/liberations, forget we’re a natural law country. That that is the foundation on which we built the greatest country in the history of the world and that that foundation comes from God. And a lot of people have a real problem with that. And people on our side, many are embarrassed of it. The other side I will tell you, when I use those kinds of arguments I have never had the other side do anything other than sort of sit there dumb and mute. And they don’t have a retort to it because it’s so rather obvious in the founding history that there’s really no denying it, that it was a critical element on building the foundation we’ve got.

So now, fast forward to Hobby Lobby and the left, of course, demonizes corporations to begin with. Among other things, but demonizes corporation so the notion that a corporation could reflect a moral compass, particularly one grounded in faith, I mean it makes their head explode. Just one of the charms of this case, but nonetheless, that’s what we’re waiting on from the Supreme Court. And the best analogy, and it’s not new to me, is the Citizens United case. If a corporation can express opinions and be protected in doing so by the First Amendment, then there’s no reason logically one wouldn’t think they could undertake to enjoy the other rights protected under the First Amendment. And a corporation, as by definition is just an association of individuals, so it’s not, on that level, on the case level with the existence of Citizens United and on the philosophical level, it’s really not that farfetched.

But it’s a lot easier to see this happening in a closely held company like Hobby Lobby, let’s compare it to the other end of the spectrum. To Exxon. Well, what is Exxon going to do with, you know, I don’t even know how many shareholders they have. Let’s just say they have one million, because I have no idea, if they have one million, if they have 100,000 shareholders, the there’s this board that’s sort of incestuously picked, of course, are they ever going to be swept into this? No. They’re never going to because they’re never going to actually be able to coherently express any opinion on such matters, certainly not for very long. But if you’re going to hear them argued as the boogie man, you already have really, and I don’t mean Exxon I just mean these big bad corporations, we learn all the BDC’s in law school. Big bad corporations, but they are irrelevant to this discussion. They are technically relevant, because they are corporations and what’s being argued about is corporations. But in a practical matter they are irrelevant. And so the left will use the never applicable to try and diminish the arguments of the real world reality of companies like Hobby Lobby.

I am so proud of these folks, this family, that is really literally willing to risk everything they’ve built for decades and decades to vanquish the principal of religious liberty, which may be more than any other is under assault in this country today. I mean, we should all be so grateful to them for their willingness to do this. I mean, picture that conversation, just make it a husband and wife. Husband comes home from work one day, you know dear we heard from the Government today and they want to make us buy this contraception stuff that we, of course, have a faith based objection to. And so what I told them is that we’re willing to literally shut down 30 years worth of family business building tomorrow in order not to do this. So, you know, honey, I think I may need you to go back to work. I mean, come on. If I remember correctly, you know, two different generations of that family have been involved in building this business, very successfully.

Cuccinelli: I know my family has been a Hobby Lobby shopper so it’s not something foreign to us. But for them to step up like this is really heroic and it really should be seen in those terms. And it’s really easy for people to read a newspaper article, but I think it’s important, particularly for folks who appreciate what they’re trying to do legally to really appreciate what they’re doing personally. I mean, they have literally put everything they’ve worked for in this world, critical distinction, on the line here. Because the level of fines that they are having sort of racked up against them right now is bankrupting. I mean, if they lose and the full brunt of those fines are applied there is no fiscal way they can survive. And they are prepared for that. I’m just so impressed. I’m just, I wish we had other, more people who were willing to step up like this. It tells me something about our country that it is so rare.

Jackson: After seeing reports about the argument of the Court, do you have any feelings on how it may go? I know it’s always difficult business to predict something the Supreme Court would do, and we’ve played this game before, but after hearing reports of that argument and how it went, and how Kagan, what Kagan was saying, do you have any feeling on how this may go?

Cuccinelli: I think it was Niels Bohr who liked to say that predictions are very difficult, especially about the future. And in cases like this Justice Kennedy makes that as true as it can possibly be. You know, when we had the health care case in front of them everybody would ask me, oh what do you think Kennedy would do? And my answer was, don’t worry about Kennedy. Kennedy is a rock on federalism. Oh? Yeah. Don’t worry about Kennedy. Keep your eye on Roberts. And for a year I was saying that. And unfortunately he made us cry, but in this one we’re back to Kennedy. And religious liberty has been a very amorphous path in the fog for this Court for a number of years, for a number of decades really.

So, it’s very hard to predict where this is going to come out. Frankly I think we’re probably at pretty much a tossup at this point. We shouldn’t be at a tossup, and realize this isn’t the constitutional case. This is a case about a statute, not the constitution. Everybody assumes, and I guess I’ve talked that way so I’ve perpetuated that, so let me correct it. This is not about the First Amendment, per se. This is about maybe the spirit of the First Amendment and the right to religious liberty, but when 24 years ago the Supreme Court decided a case, a fairly obscure case that denied the ability of some American Indians to practice their faith in the manner in which they had for years, because of a generally applicable law which applied to them, it would be like saying Catholics can’t drink the wine converted transfigured to the blood of Christ because, you know, they’re under 21. It was that kind of a case.

We shouldn’t be at a tossup, and realize this isn’t the constitutional case. This is a case about a statute, not the constitution. Everybody assumes, and I guess I’ve talked that way so I’ve perpetuated that, so let me correct it. This is not about the First Amendment, per se.

And so what Congress did on one, you know, it’s the best law that I am aware of Warren Hatch passing, is the Religious Freedom Restoration Act. And it basically said that individuals, who are aggrieved in their exercise of their freedom of religion by a generally applicable statute, don’t have to comply with it. I’m oversimplifying a little bit. That’s what this case is about. Does that statute cover a corporation? It still brings us back to the question of religious liberty which is protected under the statute, for a corporation instead of an individual. And you know, they’re going to run up against the fact that corporations are an association of individuals.

If I had to bet I would bet that we’re going to be happy with how this turns out, but I have a funny feeling that it is going to be turned into a baby splitting exercise. No pun intended on the contraception thing.

Domenech: In terms of your engagement with these issues, I wonder do you feel like religious liberty as a whole is getting more attention these days in the sense that we talk about the culture wars a lot on the right. And generally the way that the media frames them is a false one in the sense that they suggest that, you know, Christian bible thumpers are the antagonists.
Isn’t this a clear example of how the left really does believe that simply saying “hey, I don’t think the Government should force me to buy something I have a religious problem with” is discrimination, is denial of rights?

Cuccinelli: And they become like foaming at the mouth crazy mad about that. Oh, yes. “You will be made to care” as Erick Erickson likes to say. You will be made to care. It is an excellent way to put it. People in this country don’t realize how tyrannical the left is. It is phenomenally intolerant of any views other than its own and it must label them as bad, evil, malodorous in some way. It’s all they have. They can’t really argue against them, so they don’t, which is all of liberalism. Every liberal position is built on a fallacy. If you give me enough questions honestly answered I can get you to the hollow core of any liberal position. Of course, normally they don’t let you, they won’t answer your questions because they instinctively know that themselves. The truth is our friend, but you have to get to it. And they’ve been winning a message war. I think, however, they are reaching the point, they’re not there yet, they’re reaching the point of over reach on this issue.

Honestly I think what’s going to need to happen is people are going to actually go to jail. And when people start going to jail because some baker will not bake a cake for a wedding for which he or she has strongly held religious objections, and some Judge says well, but I have ordered you to bake the cake, and the baker says no. What’s the Judge going to do? They only have one real option and that’s to put them in jail. I’ve got to go back and look at fine options. Judges are going to be scared to do it. But some Judge somewhere is going to start doing it. It’s going to be a contempt of court, of a court order situation. You may get it, for instance, in the state where a marriage amendment is fought out and maybe lost, and then people show up at a clerk’s office and the clerk won’t give them their certificate. And they’ll go for a writ of mandamus, and the Judge will order the clerk to give him the certificate and the clerk will say no. And the Judge will throw him in jail and I think that you literally are going to have to have, so I commented gratefully on the Hobby Lobby families sacrifices that they’re making right now. There are more to come if we’re going to push this pendulum back the other way. There are more to come.

Domenech: I want to shift gears. You’ve been a prominent spokesman in the wake of the election on security issues and privacy in a way that I think a lot of people are welcoming is someone who has experience, you know, arguing before the Supreme Court and engaging on these issues.

Do you believe that within the context of these broader conversations about the NSA and the invasion of privacy, that Republicans have really woken up to the down side of empowering Government to invade their lives, invade the lives of Americans in a way that is essentially without restriction? And tell us a little bit about the cases that you’re engaged in.

Cuccinelli: Well, the partial answer is yes, but not in terms of Republican. I mean, these are issues, you know, when the ACLU talks about privacy meaning what you and I understand privacy to mean, which is also by the way what Noah Webster understands it to mean, not taking life equals privacy. It’s amazing how vehemently I can agree with them. You know, my client Rand Paul got a standing, got a series of standing ovations at Berkley. Now, they’re not going to vote for him, but they do agree with him.

Domenech: There is a preference list there of, you know, Elizabeth Warren, Rand Paul, Hillary Clinton that’s sort of interesting.

Cuccinelli: Yeah. My client may not appreciate that comment, but you know that’s just, in my view, the reality. But still it reflects the power of issues like this to reach across party lines and really try to cross traditional conventional wisdom I should say, about who is where in the spectrum. And it really gets us more to the Mark Levin type of up, down instead of left, right. Bigger, smaller. And while we should never be diluted into thinking that anybody on the left really wants a small government, they can tend to agree with us on some of these privacy issues. And us, by the way, is not all conservatives. I mean, I spoke to a Young American Foundation this weekend and several of them, it was funny, some of them on Thursday had heard from Dick Cheney in one place, I think D.C., and some others of them had heard from Rand Paul on the same day in Baltimore. Well, those were two rather different messages. And Dick Cheney said, oh, no, I think everything we’re doing at the NSA is fine, legal, and we ought to keep doing it. I mean, it was just that blunt. God bless Dick Cheney for that.

There are vast swaths of our party who agree with Dick Cheney and there are not, however, vast swaths of the electorate that agree with Dick Cheney. And you know, that’s going to be one of those dividing lines as we roll into 2016.

There are vast swaths of our party who agree with Dick Cheney and there are not, however, vast swaths of the electorate that agree with Dick Cheney. And you know, that’s going to be one of those dividing lines as we roll into 2016. I don’t really see it showing up a lot in the 2014 primaries. I really haven’t seen it poke it’s head up. I mean, some of the more libertarian candidates talk about it because they’re enthusiastic about it, but it’s not intelligently, it’s not a point of contention in terms of deciding votes I don’t think. Because even the neo-cons are not stepping up in those primaries and saying oh, no, you know, we’ve got to have the selfie cam on every person and we’ve got to be tracking all of this. They’re not defending it publically, which tells you their strength, their confidence level with it.

So, I think it’s a very important discussion to have. We are, of course, having in the courts, there’s three or four cases, four cases running right now at least. There’s really more than that, but I do think that our case against the NSA helped up the public pressure these cases have put on the President. I think Freedom Works and Rand Paul brought a new level of pressure on President Obama on this issue that has really not compelled him forward, but has added to the pressure in a way that other things haven’t, for him to try and kind of cover his tracks. I mean, this was a guy in 2005 said this was all horrible and wrong, and then he became President, and he expanded it all. Of course he didn’t love his country either until he won the race, so why should we be surprised.

Domenech: I have to ask you as someone who witnessed the fractured and false level of depiction of the race that you experienced last year firsthand here in Virginia. You’ve been very active since the race on a number of different issues, and I think you’ve had a lot to say about lessons to take away from it. Personally the lessons that I took were that it is possible to buy a Governorship in Virginia, and that Virginia is more willing to accept a sort of a cronyist approach to politics than I would like. I wonder what lessons you took from the experience, and what lessons you think the Republicans should take?

Cuccinelli: Well, those are two of them. Those are two of them. It was a continual reminder of something that I don’t think we needed to learn of how subject to circumstances around us we are. And I can complain about that and I can look favorably on that. I mean, there were two silver bullets in our race against us, either of which if it doesn’t happen we will, that was Bob McDonnell’s 2013 and the other one is the government shut-down, and there are people who, on our side, who particularly don’t want to hear that. But that’s the reality on the ground of my race.

On the flip side, when the Government shut-down ended it took about 2-3 days to sort of flush that out of the system and then we could turn to what no one in the country was better positioned than me to deal with, and that was Obama Care. And the wave that began to grow in Obama Care there in the third week of October came within a hairs breadth of carrying us over the top, and I’m under no illusions to say, you know, our super great campaign. You know, we had a perfectly fine candidate. It wasn’t spectacular, it wasn’t horrible, but you know, we’ve been battered backwards by these two other circumstances, and this third one almost took us over the top. And like I said, no one was better positioned to deal with Obama Care than me. And my campaign strategy from 2012, now for your listeners I had a 2013 Governor’s race, so we’re one of those odd year states, so from 2012 we knew that October 1 was the implementation date of Obama Care. And we knew it would be a disaster. It couldn’t be anything else.

And our whole plan was for the last five weeks to talk about our plan, and fighting Obama Care, and the state’s continuing role in doing that, and my history of doing it. I mean, I’m credible on the issue to say the least. And we were boxed out of that just by circumstances. So, you are correct that money was decisive. I guess it’s the third silver bullet if you will. We were outspent almost 2-1 and I raised about as much money as Bob McDonnell did. And it was a lot harder frankly for me to do it than him, back in 2009 for Bob. And we came very, very close to winning. But frankly our own people, and conservatives need to understand it wasn’t just establishment folks. They get a lot of blame from conservatives, there were conservatives who gave up on us at the tail end of September until maybe the third week of October. And they started coming back and saying oh, well, wow, you know, maybe we can win this thing. Wow. And had they not bailed out for those four weeks we would have. And by “bailed out” I mean volunteers on the ground, some of them just sort of faded away. Donors from all over the country wrote us off. And, you know, they were encouraged to do so by certain forces, and elements, and people. Nonetheless, they made that decision themselves.

It was an eminently winnable race and frankly we got pretty darn close given how badly we were outgunned. But there are a lot of lessons there. And most races where you run on something do have a lot of blessings. They didn’t run a positive ad after June. They literally didn’t run on anything. So, you become Governor what do you do? You know, now they’ve got gridlock down there. They can’t get a budget because he’s committed to Medicaid expansion, but he didn’t run on it. He ran away from it, especially when the Government shut down hit.

Domenech: I remember him promising that the budget process wouldn’t be shut down at all in the course of it.

Cuccinelli: Right.

Domenech: I do have to ask, because it’s such a hot button issue nationally and for lots of Republicans in this cycle, what’s one lesson you took away from the experience? One of the arguments that’s happened in the wake of our campaign is how do we talk about this war on women’s stuff? Should we avoid talking about it? Should we talk about it more? Should we push it more? What’s the best response? I’m sure that there are things that you’ve thought about along those lines as someone who has strong feelings about the various issues involved and the fraudulent way that the left and the media play games on this front.

There are vast swaths of our party who agree with Dick Cheney and there are not, however, vast swaths of the electorate that agree with Dick Cheney. And you know, that’s going to be one of those dividing lines as we roll into 2016. What advice could you give if you were in front of all the different Republican and conservative candidates across the country who were going to face this, even if it’s just a one or two percent peel off issue, designed to be a scare tactic for young women, or something of that nature, how would you advise them to talk about it given the experience that you saw in 2013?

Cuccinelli: You know, in each of my debates I laid out in blistering fashion what my opponent believes on this issue. And he stood there and just, it’s like he didn’t even hear it. The media reported none of it. And, you know, a lot of people on our side, I have a long pro-life history like no, you’ve got to do this. You’ve got to do that. There were people who were disappointed in my pro-life positioning, which is amazing given that the 12 years of work I’ve done on the subject, with few peers in Virginia frankly, and I’m not sure that I have a lot to offer there. I can’t say that, you know, what we were doing wasn’t working.

And you know, part of it was just to try to offer to be on offensive a little bit on Obama Care, to offer positive alternatives, and I don’t think we’ve solved that yet. I really don’t.I wish I had more to offer there.

And you know, part of it was just to try to offer to be on offensive a little bit on Obama Care, to offer positive alternatives, and I don’t think we’ve solved that yet. I really don’t.I wish I had more to offer there. You know, that is probably the point of analysis where people come in and have the strongest, most strongly held views about what did or did not happen, or why, or how it’s right or wrong.

Domenech: There’s a real Monday morning quarterback thing that goes on within that space.

Cuccinelli: Oh, well in that area in particularly. I would say this, one thing did work well. And I credit it to talking to a lady who across the country has been deeply engaged in fighting Obama Care. You know, I’m an engineer, I’m left-brained and I’m a man, so I have all sorts of handicaps in this area. And she said, you know, men talk about jobs, and numbers, and money. Women care about whether their child is going to be able to get the doctor that she wants to pick for them. And it was a useful reminder of something I already knew, that I should be arguing about Obama Care on the emotional points not on the quantitative points. Which are very powerful, but what matters to people is how it strikes them, not just in their real lives.

I mean, we think all the time about applying our principles at the kitchen table. It’s actually more than that. You can’t just apply them at the kitchen table, and I actually think we may undershoot there. You have to apply them to a heart at the kitchen table. We’re so brain focused on the right, we’re so logic minded, and we’re right to do that. You’ve got to have good policy, and good policy requires thinking, and appreciation for history and how things have played out in the past. But we do that pretty well. What we don’t do well is connect it to the heart. So, I would say that I changed how I talked about Obama Care after spending 45 minutes with her. Now, this is somebody working with Heather Higgins who has been doing this around the country as well, and you know, they’re develop messaging is really good on that issue. But for any given candidate you’ve got, first you’ve got to have a good candidate.

For instance, I have mental health experience to talk about. Women care more about that. Men are like yeah, that’s nice. Women are the ones who make those decisions in families, and they are the ones who are sensitive to the fact that everybody knows a family affected by mental health issues. And I have that to put forward, and frankly Virginia has a lot of need in that area. Your listeners probably don’t know that, as you do, one of our State senators was literally stabbed by his own son after my election in a bout of mental illness and he killed himself. And you know, this has been brought home in Virginia and of course we have the Virginia Tech tragedy just about seven years ago this month. And that is still a deep scar in Virginia. And I’ve been involved, working with people suffering from mental illness for 16 years. You know, that is a, first of all we need to do the work so the logic element is there.

But it’s also an opportunity for someone like me to connect at the heart level. The best ad we ran the whole race was a positive ad, and most people aren’t used to that. Most people’s best ad is a negative ad. Ours was a positive ad. It was about me helping exonerate a guy who had been in prison for 27 years. And, you know, people don’t expect conservatives to do that. They should expect conservatives to do that, and that’s a failure of conservatives. I don’t know why we think government does nothing right until we get into criminal justice and then all of a sudden we think it can’t do anything wrong. It’s totally inconsistent with our skepticism about the quality of government performance. Nonetheless, you’ve got to have those with a candidate to put forward. Now, it wasn’t enough for me, but I will say it was very, very helpful to me to learn how to talk about Obama Care in ways that women care more about. And it worked. It worked. And it almost worked enough to win.

I would also comment, and we haven’t talked about it, that I won the youth vote. And a lot of people don’t realize that, and that’s of course been a particular challenge for Republicans. I won the youth vote in Virginia. And I would tell you I won it on freedom. Younger voters are more attune to freedom. That’s why Ron Paul was, Ron not Rand. I’m going back now to 2012 and 2008, did better with youth and brought more of them into the Republican party, and it’s why everybody else who Ron Paul made drive crazy. They should be so grateful to him for bringing them into the Republican Party that, you know, that kind of approach free based freedom appeals to youth voters. They are more idealistic than any other voters, and that’s not a bad thing. It’s a good thing. It’s actually a useful barometer. It’s hard to win them because, you know, the old Churchill saying, if you’ve got no heart at 20, I mean, if you’re not a liberal at 20 you’ve got no heart. If you’re not a conservative by 40 you’ve got no brain. What we really want is both. And we have the tools to get there, it’s just hard. Our job is harder and it’s particularly difficult when you’re outspent 2-1, but that’s the way it goes.

Jackson: Let’s go out on this, when you look at the Republican Party for 2014 and 2016 and you see sort of the struggle between those who are referred to as the establishment, those referred to as the grassroots, the sort of the Tea Party movement versus Washington. That whole sort of mess we’re caught up in. What is that say to you that 2016 is going to look like? How does our presidential side shake out with everybody in these different baskets?

Cuccinelli: First of all, we have several reasons to be optimistic politically. Unfortunately one of them is because our country has bumped along under the leadership of this President and his administration, including Hillary Clinton, in a way that when you start to stretch closer to eight years is just harder and harder to defend. It’s a terrible inheritance for a Democratic candidate. That’s one. Two, the quality of candidates looking at running in 2016, no deep offense to the ones of 2012, is a step up. I mean, I think we’ve got a stronger team coming into this. And you’re going to hear all the Governors, every Governor are going to say well, we need someone outside of Washington. No. We need somebody who just isn’t captured by Washington. Governors are good candidates for that, but you know, you can’t, that’s why I think Rand Paul and Ted Cruz, to name two in particular, are having a substantial appeal. Because yeah, they’re in Washington but they’re not of Washington and it’s rather obvious. And that’s important. You need competence, but you also need commitment to not being captured by the capitol culture. And frankly, they haven’t been there that long but each of them has demonstrated that that isn’t going to happen to them.

So, you know, you’ve got some of those options. I’m optimistic about 2016. 2014 is a set-up for 2016 as it always is, but more importantly it’s a second midterm gut check on the President and I don’t think he’s going to do very well. And he shouldn’t do well. He’s, you know, helped destroy this country. I look forward in 2016 to a President, to a nominee, let’s get before President, to a nominee who will love this Country even if he or she loses. And that’s not what we have in the White House right now. It makes a huge difference and I’d like to see us have someone who is ready to take on the Washington establishment, not work with it. And I don’t mean that quite literally. You’ve got to work with everybody, but it doesn’t mean you have to give into them. And the reason Obama became President isn’t because of Obama, it’s because of six years of Republican failure from ’01 to ’07 when we had the House, Senate and presidency, and abandoned every principle we ever said that we ascribed to.

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