Sexual Harassment: How Come Weinstein Fell But Trump Prospered?

This article first appeared on Dorf on Law.

Watching the well-deserved fall of Harvey Weinstein, Bill O'Reilly, and other public figures who paid large sums to settle lawsuits for sexual harassment (and possibly worse), one can't help but think about the Groper in Chief.

If a pattern of sexual harassment makes a man unfit to run a movie studio or to serve up daily doses of right-wing tripe on FoxNews, why didn't the Access Hollywood tape and the credible accusations of a dozen gropees sink Donald Trump's presidential campaign?

The conventional answer over the last year or so has been a variant on Trump's Fifth Avenue Conjecture. Trump famously said, "I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters."

People who supported Trump, the conjecture goes, knew he wasn't a saint but didn't care. They were in the tank for him, warts and all.

Undoubtedly there's something to that, but I want to propose a more radical--and more disturbing--hypothesis. I want to suggest that the Access Hollywood tape and Trump's general pattern of abusing women actually helped him. He didn't win the presidency despite his misogynistic misbehavior; he won the presidency because of it.

I'll admit at the outset that I have nothing like proof of my hypothesis. Still, the evidence we do have is intriguing.

Let's begin with a historical comparison. Bill Clinton's popularity was apparently unaffected by the Monica Lewinsky scandal. Indeed, he became more popular over the course of the scandal. Why?

GettyImages-631919264
Summer Zervos and attorney Gloria Allred (left) announce their defamation lawsuit against Donald Trump on January 17, 2017 in Los Angeles, California. Zervos a former contestant on The Apprentice accused Trump of sexually inappropriate conduct prior to the presidential elction. (Photo by David McNew/Getty Images) David McNew/Getty

One possibility is that the Lewinsky scandal actually did harm Clinton with the public but that this effect was masked by the booming economy of the late 1990s. Maybe in the absence of the Lewinsky scandal, Clinton would have been even more popular?

That's possible. It's also possible that Clinton's case should be treated differently because the Lewinsky affair was consensual. Possible, but that seems to me a stretch.

At the very least, Clinton showed incredibly bad judgment in having an affair with an intern, engaging in conduct that would violate the fraternization policies of many private firms and other large organizations. And Clinton's supporters were also willing to overlook the facially credible Paula Jones accusation and the extremely disturbing Juanita Broaddrick allegations.

Thus, we have a working hypothesis: In an age of political polarization, accusations of sexual misconduct—including sexual assault and rape—will be perceived by political supporters of the accused as simply politically motivated and thus dismissed.

That working hypothesis in turn generates a response by politicians: Deny, deny, deny, regardless of how credible the accusations are. People who oppose you politically will not believe your denial, but you don't care what they believe.

Meanwhile, people who support you will support you more strongly, because they will see you as unfairly beleaguered. Under the right circumstances, this rally-the-base effect will be large enough to counteract any loss in appeal to independent voters.

In my judgment, that's a pretty good working hypothesis. It also roughly fits the facts of the recent scandals. Once the news actually broke, Harvey Weinstein fell fast because no one could credibly claim that the accusations against him were politically motivated.

By contrast, the FoxNews harassers (the late Roger Ailes, Bill O'Reilly, Eric Bolling, and whoever comes next), probably hung on longer using the deny, deny, deny strategy because FoxNews executives and talking heads are practically politicians, i.e., they benefit from polarization.

So far my hypothesis is nonpartisan. It holds that both Democrats and Republicans are unhurt by and maybe even helped by accusations of even very serious sexual misconduct. But I wonder whether there is an added impact in Trump's case.

It has long been known that authoritarian tendencies correlate strongly with support for Trump. Thus, there are probably substantial numbers of Trump supporters who doubt Trump's denials but who nonetheless support Trump more strongly than they otherwise would because they admire how he wields power over others. Some of the authoritarian men who admire Trump because he is a bully admire him all the more because the people he bullies are women.

However, my hypothesis—that some people voted for Trump because rather than in spite of his Access Hollywood boasts—would apply to some of the women who support Trump as well.

As noted above, however, I'm just conjecturing here. At the very least, this seems like a fruitful area for research.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

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