Attorney General and candidate for governor Tim Fox turned some heads this week when he submitted, along with the Attorney General of Ohio, an amicus brief countering the wishes of the Trump administration and rejecting the argument that the Supreme Court should strike down the Affordable Care Act.
Fox’s brief offers an important point. He correctly notes that were the Supreme Court to strike down the ACA, it would “deprive millions of non-elderly Ohioans and Montanans of coverage for pre-existing conditions.”
He’s right, of course. The ACA has given 20 million more Americans access to health insurance. Striking down its provisions that protect the right of those with pre-existing conditions would be devastating and even life-threatening for some. It would represent an absurd judicial overreach that would give the courts (and individual judges) enormous discretion over public policy, undermining the continuity of government.
But Fox’s statement was a striking reversal from the position Fox took in 2012 when he said he would be the kind of Attorney General who would fight at the Supreme Court to strike down the ACA:
“(Chief Justice) John Roberts got it right when he said Congress put a gun to the states’ heads,” Fox said. “Certainly, in many respects, it’s become more evident that Montana needs an attorney general that will stand up to federal government, mainly because of the Affordable Care Act.”
That’s also a slam at current Attorney General Steve Bullock, the Democratic nominee for governor who defeated Fox to become attorney general four years ago. Bullock refused to join attorneys general in 26 states, all but one a Republican, who offered legal arguments against Obamacare in federal court.
Fox said he would have joined that effort.
And Republicans in Montana are likely going to lose their minds about it. One prominent Republican Astroturf site that’s so transparently in the bag for some candidates that I won’t link to it headlined their story “Fox Files Brief in Support of Obamacare.” The Montana and Conservative Values Facebook group, which boasts 5,500 members is filled with grammatically-challenged rants demonstrating fury that Fox didn’t move with other Attorneys General to strike down the law.
Given the likely reaction of the intellectual luminaries who run the Montana GOP, we can almost count on Greg Gianforte spending more of his millions blanketing the airwaves telling Montana Republicans that Tim Fox supports Obamacare.
And this illustrates the bind Fox will face. He’s almost certainly the strongest Republican candidate to win a general election because he’s seen as the most moderate in a field of reactionaries, but that general election strength will be a real problem in the primary. As their electorate has moved to the Trumpian fringe, moderates—or those perceived to be moderates—don’t win contested statewide primaries in Montana, and Fox, both because of some genuinely held moderate positions and the media’s unwillingness to cover some of his more reactionary positions will almost certainly enter this race as the candidate closest to the center.
The recent GOP Senate primary, for instance, has to offer some concern for Mr. Fox. While I do think Russ Fagg badly overestimated his name recognition outside of the country clubs of Billings, he was the clear establishment, centrist choice in the Republican primary, and he got crushed when he was rejected by the conservative wing of the GOP who saw through his pandering, clumsy, and even racist efforts to establish his conservative bona fides.
All that leads me to wonder how Fox will navigate this primary. As the frontrunner (even if Greg Gianforte makes his second bid for the governor’s chair), will he hope to win by appealing to the middle in a sea of candidates who are desperate to cling to the hard right? Or will he feel pressured to move right as he travels the state and talks to voters who believe that vaccines are a government conspiracy and that federal law enforcement is the enemy of the people of Montana?
For years, there has been talk about the inevitability of Fox becoming governor, but I think that narrative ignores the fact that the Republican Party has radically transformed in the past decade and Fox has never really faced the kind of campaign challenge he will face trying to dance through the GOP primary without making himself deeply unattractive in a general election.
It will be fascinating to learn whether Fox, who has never really face the scrutiny he deserves, navigate the choppy waters of two elections without the comfort of core consistent beliefs to guide him, is the candidate who really can end 16 years of Democratic control of the Governor’s office.