Not Your Father's Republican

Not Your Father's Republican

January 04, 2005
Originally published in Liberty Magazine

 

As governor of Maryland, Robert Ehrlich fought off trial lawyers, teachers' unions, and a Kennedy - and signed a bill legalizing medical marijuana. What will he do next? Run for president?

In early 2003, the Democrat-controlled House and Senate of the Maryland General Assembly passed a bill to sharply reduce penalties for use of marijuana by the terminally ill, and national GOP drug warriors were in a panic. Nine states, some of which were heavily Republican, like Arizona, had already passed similar medical marijuana laws, mostly through voter initiatives.

But Maryland was different. It was home to the inside the-Beltway suburbs and some of the D.C. drug warriors' literal backyards. Commuting to a state with this law on the books would be a constant reminder that, no matter how much they linked pot to terrorism on national TV, the American people just weren't as enthusiastic about the drug war as they once were.

But the GOP drug warriors, beginning with Bush administration drug czar John P. Walters, thought they could count on Robert L. Ehrlich, Maryland's newly elected Republican governor. After all, Ehrlich, coming off a surprising victory in 2002 in which he defeated the lieutenant governor, a Kennedy, was also winning battles with the Democratic legislature by refusing to raise taxes to solve the state's budget crisis. He was a rising star of the GOP, touring the country with President Bush, so Walters and others made a full-court press to sway him to veto the bill, which would reduce the maximum penalty for medicinal pot use from a $1,000 fine and a year in prison to $100 and no jail time. Even though Ehrlich had cosponsored one of the first bills introduced to allow medical marijuana while he was representing Maryland in the U.S. House of Representatives, Ehrlich had never been very vocal on the issue as a Congressman. In fact he was something of a loner, and never seen as a leader on anything. It was reasonable for Walters and others to assume he could be swayed fairly easily.

"I hope anybody who can help explain the legalities here and the dangers of this bill will contact the governor,"

Walters said in an April 2003 speech at a Baltimore substance abuse conference. The Baltimore Sun paraphrased Walters, saying that his office was "making an unprecedented push to persuade Ehrlich to veto" the bill. Warning Ehrlich not to be "conned," Walters concluded, "It is an outrage that, in this state, the legalizers would come here to try to put additional people in harm's way." Former Drug Czar Bill Bennett, a resident of the Beltway suburb Chevy Chase, Md., also got into the act. He wrote letters and placed phone calls to Ehrlich and told the Sun, "This is softening the public's image of marijuana." When Ehrlich visited Capitol Hill, several of his former GOP colleagues asked him, "Are you really going to sign a marijuana bill?"

The answer was yes. And not in the dead of night, but in a very public way in May of that year. He talked about his support for Bush, but said that he respectfully disagreed with him on this issue. He talked about how he was influenced by his brother-in-law who had died of cancer two years earlier after prolonged suffering. He then explained a central tenet of his governing philosophy in a statement printed in the Washington Post: "If you look at my views over the years, there are clearly two wings of the [Republican] party on social issues. One is more conservative, and one is more libertarian. I belong to the latter, and I always have."

A year later, when I interviewed him in his office on the second floor of the historic statehouse in Annapolis, Ehrlich, stressed what he saw as the unity of the two wings. He was in a reflective mood. A few days earlier he had been in Normandy commemorating the 60th anniversary of D-Day with Bush, when he heard the news of the death of former President Ronald Reagan, one of his political heroes.

After I gave him a copy of a 1975 interview of Ronald Reagan from Reason magazine, in which Reagan called conservatism a misnomer for limited government advocates, Ehrlich said he agreed. "Jeffersonian liberals are today's conservatives," he said. Conservatives and libertarians" are cousins but at times they're fighting cousins. They share a common baseline and common philosophical foundation, and in the real world of politics they share almost identical views with regard to defense and economic issues. Clearly, however they diverge on some social issues. . . . Clearly, I'm libertarian-influenced on a variety of these issues [including] medical marijuana."

And Ehrlich has pushed even further on drug reform. Last year, Ehrlich signed a bill that moves toward treatment instead of prison for first-time, non-violent drug offenders. Bill Piper, director of national policy for the Drug Policy Alliance, calls Ehrlich "probably the most reformist on drug policy of all governors, Democrat or Republican. He's signed things into law, but he's also been proactive" on sentencing and juvenile justice reform.

Ehrlich also received praise in February from hip-hop mogul and activist Russell Simmons, who credits Ehrlich's reforms for paving the way for the repeal of New York's 30year- old Rockefeller drug laws that set harsh penalties for petty drug crimes. "I don't know if we could have done what we did in New York if we hadn't seen Maryland move first," Simmons told the Washington Times. He proclaimed that Ehrlich "raised the whole party up" and "makes every Republican open for discussion" among black voters.

But while cooperating with the Democrats on drug law reform, Ehrlich was also in contentious battles with the Democrat-controlled chambers. He stopped their proposed tax hikes, a "living wage" provision, and a ban on so-called "assault weapons" (he also lifted a 50-year-old regulation that banned bear hunts). And he can point to an accomplishment that most conservative GOP governors cannot - he has actually made the state government smaller, if ever so slightly, than it was when he took office. Maryland's government spending was cut by $700 million during Ehrlich's first year. According to his budget director, James C. "Chip" DiPaula, about $1.4 billion in current spending and anticipated growth, 14% of the state's budget, will be cut by June 2005. About 8,000 state jobs have been cut by eliminating some positions and leaving others vacant. Costly programs from land acquisition to transit expansion have been terminated.

Ehrlich is no libertarian purist, but in a time when conservative pundit David Brooks is proclaiming in the New York Times Magazine that "the era of small government is over," Ehrlich is showing that a reformist program based on reducing government can still attract voters. His stance on drug-law reform allows him to look less like a traditional right-winger to swing voters, making the budget cuts easier to accomplish.

Conversely, his fiscal stances and his attacks on gun control have made many conservative Republicans willing to overlook libertarian policies they may disagree with. While last year's Republican convention showcased "moderate" governors such as Arnold Schwarzenegger and George Pataki, observers say Ehrlich may be showing the best way to win over swing voters while retaining the base. And if he wins reelection in Maryland in 2006, he may very well be a contender for the presidency in 2008.

"He's governed from the right," says John Gizzi, longtime political editor of the conservative weekly newspaper Human Events. By contrast, Gizzi notes, Maryland's last GOP governor, Spiro Agnew, who was elected in 1966 and served until 1969, when he became Richard Nixon's vice president, was a domestic liberal. "Governor Agnew clearly was elected from the left and governed from the left. He signed into law a tax increase, plumped for stronger environmental legislation, and very much expanded the power of government. Ehrlich, by contrast, has gotten the state through two years without a tax increase."

Gizzi calls Ehrlich's 2002 victory against eight-year Lt. Gov. Kathleen Kennedy Townsend, daughter of slain senator Robert Kennedy, "earth-shattering," an upset on par with Reagan's taking of the California governorship from Edmund G. "Pat" Brown in 1966. "He overcame an illustrious name, someone who had won statewide, and Maryland history, to be elected. I call his victory nothing short of breathtaking," Gizzi says.

The son of a car salesman who worked on commission, Ehrlich grew up in the working-class Baltimore suburb of Arbutus. He received an athletic scholarship to an elite private high school and then moved on to Princeton, where he was captain of the football team. After receiving his law degree from Wake Forest in 1982, Ehrlich returned home to practice law and then, influenced by Reagan and Jack Kemp, ran successfully for state legislature and the U.S. House. The district that Ehrlich represented in Congress, consisted of the Baltimore suburbs plus some rural areas, a fairly conservative district - for Maryland, at least. Maryland politics are dominated by Baltimore and the Washington suburbs, which have many residents who work for the federal government and are solid Democrats. In 2000, Al Gore won the state over Bush, 57-40%.

Going into the 2002 elections, Ehrlich had the political advantages of a young family, athletic good looks, and a friendly, optimistic personality. But he likely never would have won had there not been splits in the Democratic Party that grew out of personal and financial scandals from the administration of his predecessor, Parris Glendening. After his narrow 51-48% victory on election day, he still had to contend with a Democratic majority in both houses large enough to override his vetoes.

To top it off, soon after he was elected, the debt the state had amassed from Glendening's spending turned out to be far greater than previously revealed - projections showed the state would be $1.8 billion dollars in the hole over the next 18 months. Ehrlich knew if he were to keep his promise not to raise taxes, he would have to make some substantial spending cuts, even if he were able to legalize slot machines to bring in revenue. Watching the Republicans get outfoxed by Clinton on the budget in the mid-'90s, he had had a preview of what the state budget battle would be like.

Democrats had already tried to tie him to former House Speaker Newt Gingrich during the hard-fought gubernatorial election. But he had some things that worked in his favor to show swing voters he was on their side: his support of drug law reform, his opposition to intrusive traffic cameras, and his push to legalize slot machines at private race tracks – all libertarian policies. Says Gizzi, "He taps on the 'he's on your side against government's sentiment. [GOP] Gov. Gary.

Johnson of New Mexico was that way and so was [Democratic California Gov.] Jerry Brown. Populist is more the term I'd use."

Slots moved front and center during the budget crisis as a way to bring in• revenue for the state. Ehrlich argued for allowing 10,000 slot machines at racetracks throughout the state. Revenue was the main selling point, but Ehrlich was able to argue convincingly for it and answer critics' objections, in large part because he never viewed the issue as being about revenue alone. To him, it was about many things, not the least of which was personal freedom. "My advocacy of slots predates slots as a fiscal issue," Ehrlich told me. "It's been about horse racing, and horse farms and the horse industry and open space. I represented horse-oriented districts in the state legislature and in the Congress. The horse industry is an important industry in our state. When this came about ... it was a horse racing-centered debate; it was not a fiscal issue. 

When this debate began to gather momentum in the 1990s, we had a surplus situation in the state, so it was not necessarily viewed as a dollar issue at all. It became more a dollar issue when in March 2000 spending continued despite recessionary downward pressures on our budget."

And to counter his opponents who have moral objections to gambling, Ehrlich is quick to point out that Maryland crossed that threshold 30 years ago with the creation of the state lottery: "During the campaign, my opponent, Kathleen Townsend, was talking about the evils of gambling, and my response in the debate was, 'Gotta Play to Win,' which is the Maryland Lottery's motto," Ehrlich recalled. "Of course, her administration funded that advertising campaign, because her administration depended on in excess of $400 million a year in lottery proceeds for the general fund. So it was a silly argument. You could make arguments against slots that are intellectually defensible arguments, but to talk about the evils of gaming when you're asking people to 'play to win' twice a day - Pick 3, Pick 4, Scratch-off, Lotto, Big Game, everything else - is pretty much a joke."

When the legislative session began, many liberal Democrats sounded like moralistic conservatives on the issue. House Speaker Michael Busch talked about his father who was addicted to gambling and left the family to live in Las Vegas. As an alternative, Busch proposed $1 billion in corporate, personal, and sales tax hikes to solve the fiscal crisis. Ehrlich went around the state and on talk radio, saying this would send businesses packing to neighboring states like Virginia. Even many liberal Marylanders did not want that big a hit to their wallets. Ehrlich also proposed $851 million in spending cuts. Maryland voters are "very liberal on many social issues but have a surprising conservative streak," says Barry Rascovar, former Baltimore Sun reporter and author of "The Great Game of Maryland Politics." "Maryland is more conservative than you would guess looking at the presidential election returns, or the outcome of who is elected to Congress. When you get down to state and local issues, suddenly a lot of that liberalism flies out the door when it butts up against reality."

Ehrlich won over Senate President Mike Miller, whose chamber has twice passed Ehrlich's plans for slots. Busch made several overtures to Ehrlich, suggesting compromises. Yes, he would back slots - if Ehrlich approved this tax increase, or if they were only on government property and not at private racetracks, which curiously amounted to outright state sponsorship of this "vice." Ehrlich would not accept these deals, and Busch has held up the slots bills in both legislative sessions.

But observers, including some Democrats, say the legislative defeats may turn into electoral victories for Ehrlich and the GOP. This is because Busch, through his maneuvers and compromises, yielded the moral high ground on gambling, and made it look like all he wanted was to get his hands on more of the voters' money through tax hikes. Busch "has frustrated his moral allies on the issue, such as the ministers and the newspapers," says Blair Lee, a Democratic campaigner and columnist for The Gazette, a Maryland statewide newspaper. "He's against slots, but he's all over the lot as to why."

In the meantime, using the shortfall as his strong hand, Ehrlich cut spending by nearly $700 million his first year and has been not-so-subtly threatening to cut more if slots aren't passed. Budget Secretary DiPaula announced in late 2003 that public education and Medicaid would be the only two state programs out of 54 in the operating budget that would grow in 2004.

Ehrlich doesn't focus exclusively on slashing government spending. He also talks about things such as the new roads he is going to build. The exceptions to his rule on taxes so far have been increases in property taxes, raises in vehicle registration "fees" for building new roads, and sewer "fees" for cleaning up the Chesapeake Bay. Ehrlich's distinction between taxes and fees is rather slippery, as Democrats don't hesitate to point out. When former Virginia GOP Gov. Jim Gilmore campaigned against the vehicle registration fees in the late '90s, he called them a "car tax." While Ehrlich makes the argument that a fee is for a specific service rendered, he overlooks the fact that government is the monopoly provider for that service, and also that the "fees" could be lower if there were deeper spending cuts. In our interview, however, he said he is open to the idea of having private roads.

Ehrlich was also rather vague about tax reductions. "After we get to balance [the budget], we'll be looking at tax cuts," he said. Ehrlich's "fees" and his lack of new tax cut proposals are two of the factors that kept his impressive "B" from being an "A" on The Cato Institute's 2004 Governors' Report Card, says Cato budget analyst Steve Slivinski. Still, Slivinski and Maryland conservatives and libertarians praise him for generally keeping his promise not to raise taxes, and for balancing the budget through spending cuts, which is more than many self-described conservative GOP governors, such as Sonny Perdue of Georgia, have done. And Slivinski adds that Ehrlich's grade is also lower because of the "hostile legislature," noting that he is a big improvement over Glendening, who received a "D" in 2002.

The specific area where Ehrlich most needs improvement is elementary education. While he made cuts to higher education, he largely ignored the legislature's big-spending Thornton state-aid plan for primary education, a Robin Hood scheme passed by the legislature that transfers money to poor districts with hardly any measure for accountability or parental decision-making. Although Ehrlich was able to get a watered-down version of charter school legislation passed in 2003, Washington Times editorial writer Joel Himelfarb faults him for not pressing harder for education reform proposals such as vouchers. Still, Himelfarb, a Maryland resident, praises Ehrlich for deftly using the gambling issue to fight tax increases and get other spending cuts, and for not being suckered into doing the Democrats' dirty work for them. "He made his peace with Thornton, which is really a big government boondoggle," Himelfarb says. "But he said, 'Look, I don't want to have tax increases for this, but if people want to voluntarily go to the racetrack and play slots, I'm amenable to this.' That doesn't strike people as being a terribly unreasonable, dogmatic, feet-in-cement kind of position." 

"Great Game" author Rascovar, a self-described "Rockefeller Republican," says Ehrlich may have maneuvered the Democrats into a no-win situation. If they give him slots, he gets a victory. But even if they don't, Rascovar argues, voters will blame them for causing the U gridlock" that results in more spending cuts or tax hikes (assuming Ehrlich sticks to his pledge and they override Ehrlich's vetoes, as they recently did on a watered-down malpractice liability reform bill that contained tax increases on HMO premiums). Either scenario would likely translate into a triumphant reelection for Ehrlich and possibly a substantial number of Republican allies being elected to the legislature.

To prevent this from happening, Ehrlich's liberal Democratic opponents have been desperately trying to shift the blame by portraying him as a heartless Gingrich-clone. School kids from urban Baltimore were bussed in to protest the governor's refusal to raise taxes - even though, so far, the spending cuts have not affected elementary schools. As for higher education, both houses sent Ehrlich a bill that would raise the corporate income tax two percentage points in return for a tuition freeze. Ehrlich vetoed the bill and successfully prevented an override.

According to the polls, Ehrlich remains popular with Maryland voters. A January survey by the Annapolis-based polling firm Gonzales Research & Marketing Strategies showed 55% of Maryland voters approved of the job Ehrlich is doing. By contrast, in a poll taken last June by the same firm, just 39% of state voters approved of President Bush's job performance. How does Ehrlich continue to draw the support of the swing voter, even while cutting spending? His personality explains some of this appeal, but another reason is provided by a bill that he chose to veto upon first taking office.

In 2003, Maryland legislators passed a bill to set up a network of cameras to catch speeders throughout the state. Ehrlich shocked the sensibilities of the nanny-state liberals in the legislature and the press when he met that bill with a veto. In a preachy editorial entitled "Safety Last in Maryland," the Washington Post lambasted him for refusing to "protect children from lead-footed motorists." Bringing up his opposition to gun control, the editorial accused Ehrlich of giving "a lot of assists to the lobbyists who put safety last" and concluded, "You have to wonder if Maryland Gov. Robert L. Ehrlich Jr. (R) has a thing about safety."

But if Ehrlich had a "thing" with the cameras, Ehrlich didn't believe that the issue was about "safety," it was about privacy and due process for those caught by the cameras, as he made clear in his veto message to the legislature. 

Although speeding is an issue that we must address, I am troubled by the intrusive nature of this type of technology and its use by government," he wrote. The influential Privacy Group of the free-market National Consumer Coalition gave Ehrlich its "Privacy Hero of the Month" award for "putting a stop to the Big Brother madness bubbling up from the state legislature."

Former House Majority Leader Dick Armey (R-Texas) says that the camera issue has the potential to bring Ehrlich support from voters who don't consistently cast their ballots for the GOP. Armey says that, since he took up the issue in the House, "I have a lot of people even to this day when I walk around the streets of Washington - and they're clearly not my kind of right-wing people - stop me on the street and say, 'Boy, I really appreciated the work you did on that camera thing.' I think it's got a lot of breadth to it as well as a lot of appeal to the non-traditional voter and activist."

Because they are set up to raise revenue as much as catch offenders, Armey has called traffic cameras a "hidden tax" on motorists. Other observers say that, as a savvy politician, Ehrlich knows that the Maryland commuters to Washington are bothered by the district's camera system. Even Washington Times conservative Himmelfarb, who opposes Ehrlich's efforts on medical marijuana, says, "On the cameras, God bless him."

Armey recalls that in Congress, Ehrlich "had good friendships, but he wasn't a fellow that sort of joined in with a movement group." To hear Ehrlich, elected in the GOP takeover year of 1994, tell it, "I had my own wing ... I felt that there was no group for me." There were two main factions: The Conservative Action Team, or CATs as they called themselves, and the Lunch Bunch, which consisted of a dwindling crowd of moderate and liberal Republicans. "The CATs brought a more religious conservatism with them on social issues, and that obviously does not comport with my views."

But he didn't feel entirely comfortable with the so-called moderates either. For one thing, he was pro-gun, and many of the "Lunch Bunch" members also fought the GOP leadership on environmental issues. There, Ehrlich voted with the GOP leadership in attempts to reduce burdensome regulations by requiring agencies to give greater weight to the costs and look at cost-benefit analysis and scientific research. And because of his blue-collar background, there was probably some added tension around many of the "country club Republicans" in the moderate camp.

Ehrlich is pro-choice, but stands against state funding and partial-birth abortion. Given Maryland politics, this was enough for most of state's social conservative activists to back him. He also favors allowing federal dollars to be spent on embryonic stem cell research, but supported a ban on cloning.

He now stands firmly against gay marriage and takes a position that seems to preclude civil unions as well. "Do I think that two men or two women, or a man and a woman who don't want to get married, can have a relationship, and the state should generally get out of their way? Yes, absolutely, that's really none of the state's business," he says. "But the state's business is in the support of traditional marriage, not the least of which is for children." He adds, however, that his staff was "studying" the question of whether there are "rights that should attach as the result of non-blood friendships and relationships in life that would give rise to specific legal rights in specific contexts," such as hospital visitation and advancing medical directives.

In his new book "Armey's Axioms," Armey writes that the trick to leaving Washington an idealist is to not "fit in too well." But a "maverick," or even an "independent thinker," in media .jargon, is a• slippery concept. Sometimes the media-anointed mavericks just seem to like the media spotlight for dissenting within their party. But a genuinely independent thinker, Armey says, realizes that "ideas are bigger than the maverick," and Ehrlich fits into that category. "I wouldn't use the term 'maverick,' as it's generally understood, for Governor Ehrlich," Armey says. "I think Bob Ehrlich is a guy who says, 'These are serious matters. It's not about me. If it gets to be about me, I'm standing on the wrong ground.' ...He came to Washington as an idealist, and he left as an idealist."

One of the ideas that Ehrlich took seriously in Congress was federalism. He broke with the Contract With America pledge on tort reform, which he calls the "federalization of state tort law," and he didn't like GOP incursions on traditional state matters such as crime. "I saw these conservatives and Tenth Amendment guys, who were very articulate people and smart people, willing to run over the Tenth Amendment when it suited their purposes," Ehrlich recalls.

"Two examples that come to mind are running over traditional areas of jurisdiction concerning state tort law and juvenile justice, which has always been [under] state jurisdiction until we got there. These were areas of particular concern I had during my tenure in the Congress." On tort reform, some grumbled that Ehrlich didn't want to buck Maryland's powerful trial lawyer lobby. No one is saying that now, because, as governor, Ehrlich has aggressively pushed for caps in malpractice cases and other tort reform action at the state level.

Another example of Ehrlich's independent but principled thinking is land acquisition. He took flak from environmental groups for ending Glendening's policy of buying "open space" throughout the state to protect it from the alleged dangers of development. Ehrlich put an immediate stop to this practice, saying the state would only buy land for parks or near the Chesapeake Bay. "The era of secondary land purchases, given other pressures, is over," Ehrlich announced at a 2003 state Board of Public Works meeting. But while pointing to budget pressure, Ehrlich made clear his belief that this type of spending was beyond the scope of limited government and was not going to resume when times were better. "This is a fundamentally different administration, and even if we had a billion-dollar surplus, the philosophical approaches expressed by me ... [are] the new law in town."

However, buying "open space" was not just a policy pursued by Glendening. Republican governors in the '90s, from New Jersey's Christie Whitman to Pennsylvania's Tom Ridge, also embarked on ambitious land-buying programs. Even Mark Sanford, a free-market oriented, former congressman from Ehrlich's freshman class of '94, elected governor of South Carolina in 2002, has expanded his state's Conservation Bank Act in order to buy random parcels of land.

"Open space" purchases, like prescription drug entitlements and other new spending, are ways consultants tell Republicans and conservatives they can appear more compassionate. David Brooks suggests in his essay that the national GOP support early childhood education, wage subsidies, national service, and energy research funding to "stave off the harsh aura of Gingrichism." Ehrlich, however, has found ways to be seen as compassionate and on the voters' side while reducing state spending. One of the ways he has done this is by personalizing certain libertarian policies, like his stand against traffic surveillance.

And what could be more compassionate than allowing a cancer patient to smoke a joint for relief in peace, or freeing a first-time, non-violent drug offender from a draconian prison sentence? Although he rejects comparisons with former New Mexico Gov. Gary Johnson, who favors complete decriminalization, he says that "for hand-to-hand sales, the traditional addict, and the non-violent offender, we could not begin to build prisons to house that population in this state or any other. Particularly for first-time offenders, everybody deserves a mistake, particularly if you have an addiction.

What has also driven my view is that so many addicts do their time and come out as addicted as they were when they went into the system." Ehrlich, who can also talk tough on crime and strongly backs the death penalty, says alternatives for non-violent drug offenders would make room in the prisons for truly violent criminals.

In looking at Ehrlich's successes, circumstances and Maryland's unique political climate have played a big role. But there are certainly lessons other Republicans and conservatives can learn from him about how to hold on to the base while attracting swing voters. In several elections in Western states over the past few years, the Libertarian Party candidate's vote was bigger than the margin of victory for the Democratic candidate. 

If the GOP had gotten these voters, Democratic senators such as Harry Reid of Nevada and Maria Cantwell of Washington would not be in that body today. Conservative pundits wring their hands and ask what Libertarian voters were thinking, accusing them of taking an "all-or-nothing" approach. Perhaps they were simply waiting for Republican candidates who express common-sense libertarian views, like those of Maryland's Bob Ehrlich.