Call me Ishmael: Is Obamacare Ken Cuccinelli's White Whale?

by Paul Goldman

"Call me Ishmael" - one of the most famous sentences in literature starts Herman Melville's "Moby Dick." I confess to starting the book several times and giving up rather quickly, defying anyone to tell me with a straight face they had actually read the thing cover to cover, and could understand it on a level higher than "guy obsessed with chasing a big frigging fish obsessively chases big frigging fish: and fish wins huge." [Lowell's note to Paul: whales are not fish, and I read the book cover to cover, but this paragraph and the next are funny regardless. :)]

Ken Cuccinelli went to UVA so maybe he took that class with Professor Whatshername and wanted to impress her by reading the whole friggin' thing. But call me a huge skeptic of the whole literary scene when it comes to Moby Dick: unless you are  fascinated by the whaling industry of the 1830s-40s, or your aunt left you $100 million provided you read every page in the book, there is no way you start the book - and finish it - unless sex, drugs, money or rock and role are involved somehow.

Enter now Captain Ahab, played by Ken Cuccinelli, who is chasing a white whale nicknamed "Obamacare." This new revised version of Moby Dick starts with these lines: "Call me Guvnah".

From the moment Mr. Cuccinelli took the oath of office as Virginia AG in January 2010, it was clear he saw his pursuit of "Obamacare" as his ticket to becoming Governor in 2013. Since then, he has pursued his particular White Whale with Ahab-like tenacity.

It was brilliant politics for him in the beginning, as I wrote when others were scratching their heads at the tactic, or calling him a showboat for taking the lead in the anti-Obamacare chorus as a rookie AG.  But those writers missed something crucial: Mr. Cuccinelli had brilliantly figured out a way to capture the hearts and minds of the base of his party from the post of AG; something very, very hard to do historically in Virginia or any state, especially when you have a sitting Governor in your own party who is popular.

It was a terrific strategy, daring really; the least experienced AG in the country outsmarting all the old whalers, and become the go-to AG on the anti-Obama news network, aka "Fox News."

"Have Brief, Will Travel" became Cuccinelli's trademark: whenever there was a conservative legal opinion needed from a conservative AG, the Fox folks and others on the right would put Ken on the TV.

In Virginia, by the end of 2010 Ken had easily become the most popular Republican among the conservative base, surpassing a popular conservative Governor. A superb strategy. Just brilliant. Except...
...then came the long leadup to the 5-4 opinion by Chief Justice John Roberts in the "Obamacare" case, upholding the law as constitutional. During this period, Mr. Cuccinelli continued to seize every opportunity to throw his harpoon at the President's health care law. But Cuccinelli had started to become like Captain Ahab, unable to understand that times were changing, that the single-minded drive of one era might not translate as well into another era. The 2010 election marked the end to one chapter in the saga of Obamacare.  The 2011-2012 period leading up to Roberts' decision marked another.

Cuccinelli as Captain Ahab still had cache and still kept his name ID solid with conservatives. But other AGs now had the lead in the courtroom, and ultimately the Supremes would have the last legal word.

In the end, Kenny came within one vote of looking like a legal genius, able to see the unconstitutionality of "Obamacare" before anyone else. But Roberts' vote - some claim he originally was going Cuccinelli's way but switched - robbed the Virginia AG of a legal victory probably of sufficient magnitude to have made him Governor easily in 2013.

The problem is that close only counts in horseshoes - or on your first date I suppose, for those of us who don't mind being politically incorrect - not when it comes to chasing a White Whale, actual or metaphorical like "Obamacare."

Captain Ahab came close, but this only increased his obsession according to folklore. Like I say, I never got to that part of the book, although the movie with Gregory Peck was super.

Now comes July of 2012. We read in the paper today that Mr. Cuccinelli is taking the lead in Virginia with a new White Whale hunting strategy. Mr. Cuccinelli reportedly now believes he has a new way to kill the White Whale legally, at least in Virginia, no matter what the conservative Chief Justice of the US says.

Here is how today's Richmond Times Dispatch explains Captain Cuccinelli latest pursuit of Moby Dick, aka Obamacare, believing he has a way for Virginia to allow businesses in the state to refuse to be part of Obamacare without suffering any penalty.

Virginia and other states can shield businesses from hefty fines for not providing adequate health insurance for employees, he [Captain Ahab aka Cuccinelli] contends, simply by refusing to set up their own state-based insurance exchanges.

Cuccinelli bases that legal theory on a quirk in the law, one variously attributed to sloppy drafting, political miscalculation or both: It includes a provision to impose those fines under state-based exchanges, but not under a federal one.

"In the law, it says those penalties don't apply if the federal government sets up the exchange," he told a tea party gathering in Henrico County last week. "Whoops!"

....For Affordable Care Act foes who first tried to kill the law in the courts and now aim to do so by electing Republican Mitt Romney president, the do-nothing approach is a long-range Plan C.

"This could bring down the entire law," said Michael F. Cannon, the Cato Institute's director of health policy studies who crafted the argument and urged Cuccinelli, a longtime friend, to pick up on it. "If Virginia just sits on its hands and does not implement 'Obamacare,' then state officials will protect Virginia employers from a $2,000-per-worker tax.[for not participating in Obamacare]"

..."It's not a legal threat. I don't think it's going anywhere in court," said Timothy S. Jost, a health care law expert at the Washington and Lee University School of Law."

In sum: Cuccinelli wants Virginia Republicans to violate one of their basic principles and opt to let Uncle Sam dictate to Virginians through a federal insurance exchange, as opposed to the Virginia saying they can do it better than the feds and build a state insurance exchange.

To be sure, the issue is more complicated. But in politics, if you can reduce something to a sound bite or slogan, that usually wins the debate. As the RTD article explains, Captain Cuccinelli's position - pro-DC, anti-Virginia - "puts Cuccinelli at odds with most of the state's Republican leaders, including Gov. Bob McDonnell, who fiercely oppose the law but also say that if an exchange is needed, the state doesn't want one dictated by Washington." As Sen. John Watkins (R-Powhatan) puts it, "I am shocked that somebody like Ken Cuccinelli would be advocating that the state go under a federal system...Virginia can do a better job of it than the federal government can...Give me a break."

In the article, Captain Cuccinelli concedes that his pro-DC, anti-VA approach runs counter to his conservative image. And again, let's be clear: the issue is far more complicated than a sound bite.

But I am not writing about that aspect right now. Rather, my point is this: the need, some might say obsession, with the White Whale, by AG Cuccinelli knows no bounds. Cuccinelli continues to chase it across the vast ocean of politics, heedless of the costs. He wants Obamacare dead, and he sees everything through that lens, no matter what.

Historically, voters want a governor not driven by blind ideology, but one who possesses a practical governing skill, a governor who understands that the title comes from the need to actually govern, not spend one's time chasing White Whales.

In Cuccinelli's case, chasing Moby Dick, aka "Obamacare," day after day (when most people want to move on) is a losing political stance both now and every day from here on in for logical reasons. Either Mitt Romney will win or lose the election. In the highly unlikely event that Mitt wins, then it will be President Romney's job to "repeal Obamacare" as he has promised. There will be no need for Captain Ahab at that point.

If Romney loses, then the public will consider the Obamacare fight over and done with on that level. Like it or not, they will expect their leaders to stop playing Captain Ahab and start governing in a practical and efficient manner to make the law work for Virginians as best as possible.

"Call me Guvnah!" may be what Mr. Cuccinelli wants. But if all the people can see is another Captain Ahab chasing obsessively, tediously, after his own particular White Whale obsession, then, in the end, Cuccinelli's dream is not going to fare much better than Captain Ahab's.  

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