Although the Adult entertainment industry wasn't a specific whipping boy in last November's election, there's no question that it was on the wrong side of the cultural war. President Bush's re-election hardly qualifies as a landslide, but it's hard to describe it as anything other than solid, particularly given the Republican gains in the House and in the Senate. As another year comes to a close and we look to 2005 and beyond, know that the battles of the last four years over the boundaries of speech are going to continue and they are going to grow steadily more intense.
By the Numbers
On its face, it wasn't an overwhelming victory: the final tally gave Bush a 51-48 percent popular vote victory over John Kerry and a relatively narrow Electoral College edge of 286-252. Not exactly the stuff of which mandates are typically made. Nonetheless, as conservative strategists have been quick to point out, Bush was the first president since his father in 1988 to cross the 50 percent mark, and his vote total was second only to Ronald Reagan. Moreover, the strength of Bush's victory is note-worthy: he won a total of 33 states, 23 of them by a margin of more than 10 percentage points. Kerry, by contrast, won half as many states (17) and only eight by convincing margins.
There are two aspects of this analysis that should be worrisome to Adult entertainment business owners. First, conservatives believe strongly (and perhaps rightly) that they provided the margin of victory in this election even more clearly than they did in 2000. Their reward after that election was John Ashcroft, and they'll be pushing hard for even larger sops this time. Second, as Bush said in his morning-after press conference, he believes that he earned political capital in the election, and he intends to spend that capital in pushing forward an aggressively conservative agenda.
One saving grace is that in a manner similar to his second term in Texas, Bush is concentrating his second term on a few carefully chosen issues, none of which directly affect the Adult entertainment industry. Nonetheless, Bush is surrounded by deeply conservative aides and advisors, many of whom will be eager to use the election of 2004 to clamp down on the perceived moral decay of the nation.
In the Senate
The Bush Administration will have the support of a much more Republican Senate. In the 2004 election, 34 Senate seats were contested. Republicans picked up six new seats: Florida, North Carolina, South Carolina, Georgia, Louisiana, and South Dakota. Democrats managed to flip just two states: Colorado and Illinois. Net gain for the Republicans: four seats, and a 55-44 edge in the Senate (one senator, Jim Jeffords of Vermont, is a declared Independent, although he typically votes with Democrats).
The South Dakota result was particularly startling. The incumbent, Tom Daschle, was not only one of the Senate's most well-known liberals; he was also the Senate minority leader, and is now the first Congressional leader to lose a re-election bid in 52 years. Daschle was defeated by Jim Thune, a staunch conservative. Thune will be joined by Georgian Johnny Isakson, who advocates on his Web site for pro-life judges; South Carolinian Jim DeMint, a self-described "true conservative" and pro-life activist; North Carolinian Richard Burr, whose Web site decries the "obstructionist work of liberals" in denying votes "on nominees who are deserving of a place on the bench"; and Oklahoman Tom Coburn, who has been quoted as advocating the death penalty for physicians who perform abortions.
Even the Democratic seat captures were a mixed bag: in Colorado, deeply conservative brewmeister Pete Coors was outpolled by Ken Salazar, who can be described at best as a moderate Democrat; and in Illinois, Democrat Barack Obama trounced latecomer Allan Keyes. Obama's victory, however, stemmed in large part from the fact that his original opponent, Jack Ryan, was forced out of the race following allegations of visits to sex clubs by his ex-wife, actress Jeri Ryan. Ironically, there was no allegation that the Ryans, either together or individually, ever had sex at the clubs; the mere idea that he encouraged the visits, however, was enough to sink the campaign of a competitive candidate. Hardly a ringing endorsement for the idea of sexual tolerance and let's not forget, after all, that Illinois is actually a state that Kerry won.
In the U.S. Senate, you need 60 votes to get anything done (since that is the vote required to shut off debate), and the Republicans are still 5 votes short. However, the election returns will make it harder for Democrats to block conservative initiatives and judicial nominations. In particular, the heat will rise on moderate Democrats, with particular attention paid to the voting records of Democrats from so-called "red states," like Arkansas (Blanche Lincoln) and Nevada (Harry Reid).
The focus on Senator Reid is particularly relevant since he is the leading candidate to replace Tom Daschle as minority leader. Senator Reid has already made it clear that he intends to strike a more conciliatory tone with the Bush Administration, including greater cooperation on the issue of judicial appointments.
In the Judiciary
The issue of judicial appointments, always sensitive, took on a special urgency in the final week of the campaign, as the news broke that Chief Justice William Rehnquist was undergoing treatment for thyroid cancer. That news was serious enough, but when coupled with the announcement that the Supreme Court's leader was not well enough to hear arguments beginning in late October, it heightened speculation that his cancer was more aggressive and advanced than previously announced.
Assuming that a declaration has not been made by the time you read this, it is likely that in the near future Chief Justice Rehnquist will announce his resignation from the Court. President Bush will then have what is likely to be the first of at least three and possibly four opportunities to shape the Supreme Court. His first will be the most significant: In the 215 years since the Court was established, there have been only 16 Chief Justices.
My prediction is that Bush will nominate Associate Justice Antonin Scalia to be Chief Justice, and then nominate a new Associate Justice. Adult business owners should keep in mind that Justice Scalia has already made it clear that he does not feel that commercial pornography is entitled to First Amendment protection (a view which, if adopted, would make all commercial pornography "obscene" under federal case law).
Far more significant are the myriad lower court appointments that Bush will be entitled to make. He's already successfully nominated 200 judges to the federal bench; assuming a similar number in his second term, Bush will have significantly shaped the outlook of the federal courts for the foreseeable future. The potential impact on the Adult entertainment industry cannot be sufficiently stressed: these are the judges who will first hear and in many cases, finally decide on issues directly relating to adult entertainment in this country. The only thing certain is that the fight to preserve rights will be more difficult and more expensive.
In the Administration
As this is being written, the shifts in Administration personnel are just beginning to occur. White House Chief of Staff Andrew Card has been invited back for another tour of duty, but many high-ranking officials will be changing addresses. It is a tradition following the re-election of a President for the entire Cabinet to submit its resignation, so that the President can have a free hand in setting a new tone and direction.
Attorney General John Ashcroft will hand over to his successor a federal agency already moving strongly towards a greater crackdown on the Adult industry. In particular, the Justice Department's hiring of Bruce Taylor is a clear indication that regardless of who is Attorney General, the Department is going to make life difficult for Adult business owners.
The bottom line from the election is that this will be a much more hostile environment for adult businesses. It will be increasingly important for Adult business owners to pay close attention to developments in Washington, and to make sure that they are carefully complying with all applicable laws and regulations. In the not-too-distant future, the Justice Department will release the revisions to the proposed changes in the 2257 regulations, and every indication is that aggressive enforcement will start not long afterwards. "The price of freedom," Thomas Jefferson reminded us, "is eternal vigilance."
Frederick Lane is an expert witness, author of Obscene Profits (Routledge 2000) and The Naked Employee (Amacom 2003), and co-founder of Tech Law Seminars, an in-house training and seminar company focusing on legal and social developments sparked by new technology. For additional information, visit FrederickLane.com.
