Silhouette of unknown governor, part of TN flag, and Supreme Court building

Will the Next Governor Challenge the Prevailing Myth?

As I was writing a brief last week for the Tennessee Supreme Court, I couldn’t believe some of what I said as my thoughts flowed through the keyboard and onto the page. What I wrote exposes a great myth held by a majority within our society, and I suspect the next governor will have to deal with it.

Can the U.S. Supreme Court Be Questioned?

The brief was in support of an application for permission to appeal. I was asking the state’s Supreme Court to hear an appeal from a decision by the Court of Appeals. The appellate court held that there were no uncertainties about the ongoing validity of our state’s marriage licensing statutes, even though the U.S. Supreme Court held in Obergefell v. Hodges that statutes like ours were “invalid” because they exclude same-sex couples from getting a marriage license.

It appears that this holding by the U.S. Supreme Court must be explained away, because that Court also held that same-sex couples have a right to marry under state law.

But how, my clients’ asked, does anyone exercise the right to marry if the existing licensing statute is “invalid”?

The Consequences of Blind Allegiance to the U.S. Supreme Court

It would appear that many in our society, including our governor and attorney general, believe the state must simply do whatever the U.S. Supreme Court says do, even if what it says we are to do can’t be done because the law by which it would be done is invalid.

Here is what I told our Tennessee Supreme Court:

[A great shift in the understanding of the separation of powers and the dual sovereignty embedded in federalism and the 10th Amendment] will come if states continue to assume that Obergefell stands for the proposition that the federal judiciary has the power under . . . the U.S. Constitution to require states to issue licenses for a wholly new type of legal relationship that has never before been licensed by those states and that its legislature refuses to authorize by new or amended statutes.

The Myth of Federal Judicial Supremacy Revealed

A well-credentialed lawyer-friend of mine who read the brief had this to say:

The tough issues you’ve raised require judges to set aside myths that they have believed because “everybody” seems to share the myth. The myth is that, if the United States Supreme Court says something, that is the law of the land, and every other court in the land just has to conform. Any statute or constitutional presumption or any common law that stands in the way just has to be conformed to the word from on high. This is horrifyingly frightening, but, probably, 90 percent of our colleagues at the bar believe this.

I suspect his estimation regarding the legal profession is correct. Just about every attorney I’ve spoken to about the lawsuit I’ve filed blew me off. If they did half listen, they said, “You can’t win. The Supremacy Clause means Obergefell is ‘the law of the land.’” Just as my friend said. That’s a scary response!

The Tyranny the Myth Unleashes

Consider what this flawed1 understanding of the Supremacy Clause means in light of the fact that the U.S. Supreme Court said the “right” of same-sex couples to marry was part of the “liberty” protected by the 14th Amendment. That “liberty,” the Court said, is why the state has an affirmative duty to issue marriage licenses to same-sex couples.

Here’s how I described in the brief the tyranny that results from this conjoined view of liberty and the Supremacy Clause (modified a bit for this context):

If the Supremacy Clause now allows federal courts to rewrite state statutes or create new types of legal relationships and then impose on every state a requirement that the relationship be licensed, there is no end and no limit to the scope of this new power in the federal judiciary. This power would essentially allow federal courts to use “liberty” under the 14th Amendment to obliterate at their whim both the dual sovereignty of federalism and the separation of powers between the judicial and legislative branches. That’s because the meaning of “liberty” under the state’s interpretation of Obergefell combined with this new understanding of the Supremacy Clause means federal courts now have the power to interpret “liberty” so as to now require positive, affirmative action by a state’s legislative body or circumvent that body’s constitutional prerogatives if it asserts its independence by not conforming its statutes to a command from a branch of the federal government that it thinks unconstitutional.

If the U.S. Supreme Court is allowed to get away with judicial edicts like the one in Obergefell, then, in the name of liberty, that Court will have destroyed the liberty that was to be protected by the Constitution’s separation of powers and creation of dual sovereigns.

Will the Next Governor Be Willing to Challenge the Myth?

This kind of power means the U.S. Supreme Court can just decide what laws it thinks every state needs for citizens to enjoy their “liberty,” and, if the next governor buys into the myth as did our current governor, then we’ll just bow down, go along with whatever the Court says, and disregard the fact we have a state legislature that has a jurisdictional power that must be respected.

I suspect that at some point over the next four to eight years, our next governor will be confronted with a situation in which he will have to choose between believing the myth or challenging it. If he has the courage to say “no” to the Court, he just might restore constitutional government for everybody.


  1. It is flawed because the U.S. Supreme Court itself has said that the Supremacy Clause “is not an independent grant of” power to the federal government. Murphy v. N.C.A.A. “Instead, it simply provides “a rule of decision. . . . It specifies that federal law is supreme in case of a conflict with state law.” Therefore, a federal court decision is “supreme” only if it falls within the nature of the “judicial power” conferred under the U.S. Constitution to federal courts and the power is exercised in accord with the Constitution itself. Violating the separation of powers and federalism is not a constitutional exercise of the judicial power, and Tennessee’s Legislature has been right not to conform our statutes to the U.S. Supreme Court’s unconstitutional edict.

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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silhouette of man praying, angel with halo, and Moses with the Ten Commandments

‘Pharisaical’ Politics on the Left and the Right?

I was recently asked a question in the context of a discussion about various LGBT policy issues that was so different from the others. It had to do with Pharisees.

Am I a Pharisee?

The question actually came in the form of a text from a pastor who supports some or all of the policy positions advocated by the majority of the persons within the LGBT community. It was straightforward: Do I consider myself a Pharisee?

I told that pastor I didn’t know how to answer that question, because I would need to know what that minister thought a Pharisee is.

That might seem like a strange response coming from me, given that a large percentage of Tennesseans probably know of that word and know or think they know what a Pharisee is.

But for those who don’t, “Pharisee” is a term used to describe certain persons who, living at the time of Jesus, held to certain religious beliefs grounded in their understanding of the Laws of Moses and God’s covenantal relationship with the descendants of Abraham. Jesus, the central figure in Christianity, had nothing nice to say about Pharisees; He roundly condemned them.

So, the point of the question asked me was clear: Do I consider myself a “bad” Christian, the type of Christian Jesus would today condemn?

What Is a Pharisee?

While I don’t know yet the pastor’s definition of a Pharisee, the characteristic for which they are most known is their self-righteousness, and I suspect that is the sense in which the pastor was referring. The classic story in this regard is that of the Temple prayers offered by a publican, who was a despised tax collector in Jesus’ day, and a Pharisee. The story is described in Luke 18:9-14.

The Pharisee stood where he could be seen and heard “and prayed thus with himself, ‘God, I thank You that I am not like other men—extortioners, unjust, adulterers, or even as this tax collector. I fast twice a week; I give tithes of all that I possess’” (vv. 11-12 NKJV).

The publican, on the other hand, went off to a corner and “would not so much as raise his eyes to heaven, but beat his breast, saying, ‘God, be merciful to me a sinner’ (v. 13)!

It was the publican that Jesus said went home justified (v. 14).

The story makes clear two problems with the Pharisee. He was really just talking to himself, but loud enough so others could hear. So, his first problem was that he really sought to be justified by what others thought of him, not God. His second problem was that he thought he could justify himself before God by keeping all the “rules.”

The publican, on the other hand, knew he had no righteousness of his own to tout before God by which he could be justified, and he knew God having mercy on him was his only hope of salvation.

What I Believe

I believe exactly what the publican believes. There is nothing I can do for God and nothing I can offer to God by which I could possibly justify myself before Him, and since I was 9 years old, I’ve never said otherwise. Whatever righteousness I have is only because God has chosen of his own sovereign will to impute to me a righteousness I could never have, that of Jesus the Son of God and the Son of Man. I didn’t earn it; I didn’t deserve it.

I also know and confess that I am far from perfect and will be until the day I die.

So What Does That Make Me?

If my beliefs are not those of Pharisees, then I have to wonder what I do or say that made this pastor want to know if I considered myself a Pharisee. I suspect it is this—I advocate in a public way for public policies based on what I believe is righteous and just and promotes human flourishing and oppose those policies that I think accomplish the opposite.

On the other hand, it might be because I am unapologetically uncompromising in what I believe and in that for which I advocate. I know that’s an unwelcome attitude in a culture awash in relativism.

But, I can only proceed in this manner in a relativistic culture because of what I understand the Bible to teach in regard to these matters. I turn to the Bible precisely because I know my heart is deceitful and prone to every error imaginable if God does not make known the truth in regard to these matters, and I believe He has done that in the Bible.

I also suspect the pastor thinks I’m wrong in my understanding of the Bible and therefore wrong on the issues I address. But I also suspect he thinks he’s right on these issues and does so because of what he understands the Bible to teach.

If he doesn’t think he’s right, then I’m not sure how he’d know I was wrong. If he simply thinks he’s right because he’s more enlightened than I am or because the Bible isn’t really a trustworthy source of truth and values, then that makes me either uninformed or gullible, but not a Pharisee. And I would hope a pastor’s level of conviction about what he thinks the Bible teaches is at least as strong as mine.

I could be wrong, and I look forward to hearing this pastor’s definition of a Pharisee, but if what I suspect is true, then we’re either both Pharisees or neither of us is.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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political roller coaster

My Emotional Roller-Coaster Journey to Election Day

Judgment Day came for a number of political candidates yesterday. Having served in the Legislature for 12 years, I truly appreciate all those who offered themselves for our consideration, and I congratulate the winners. But, I don’t think I’ve ever been more ready for a primary season at the state level to be over. It was an emotional roller coaster for me.

In the final days before the primary election, I began telling people I didn’t know which was worse—being Joe Citizen and having to make decisions based strictly on television and radio ads and campaign mailers or knowing from my 24 years in state politics/government how much of what was being said was over-the-top, misleading, and sometimes downright false. Some of what I saw in the gubernatorial and legislative primaries was despicable, and it angered me, particularly given the Christian profession of some of the candidates involved and that of their campaign advisors.

Avoiding a Political ‘Risk’

On the other hand, it was disappointing, though not surprising, to see how few candidates at the legislative level were willing to answer basic questions regarding LGBT issues. At the gubernatorial level, The Tennessean ran a story on Monday that said, “The candidates [for governor] have largely remained quiet on matters surrounding same-sex marriage, policies affecting transgender people and how they would govern when it comes to legislation impacting the LGBTQ community.”

A long-time political advisor to many of Tennessee’s most prominent politicians said, “It’s a ‘political calculation about the risk involved’ that the Republican candidates have to make when deciding whether to address the issue” of the LGBT policy agenda.

Is Talking About LGBT Issues That ‘Risky’ in Tennessee?

When I read that, I had to ask: Why, in Tennessee, home of so many churches labeled “evangelical” and home to the national and even international headquarters of two prominent evangelical denominations, is it “risky” to talk about these issues?

Is our state really one in which it is “risky” for candidates who profess to be Christians to say to a population that overwhelmingly professes to be Christian at some level that:

  • liberty in our private relations is a foundational value that a government of free people should jealously guard and that behavior—in this case, who one has sex with—is not among the type of things the government should make a “civil right” and thereby give one private citizen the right to sue another private citizen for monetary damages?
  • there are real differences between men and women, and that acknowledging them in our law in regard to matters of privacy and child rearing does not demean either men or women, and it does not do so precisely because of their complementariness and interdependence on each other?
  • marriage is a real thing, though immaterial, not something “invented” by government laws; it is tied to objective biological realities regarding men and women, and it is not therefore discriminatory to say that marital relationships are different in kind from all other types of relationships, no matter how important or meaningful those other relationships might be?

Apparently so, based on the silence of so many and the trepidation of others.

What Campaign Tactics and Silence Tells Me

What the campaign tactics and silence on LGBT policy issues tells me is that we have serious problems within evangelicalism and more broadly within Christianity. The problems are complex and interwoven, but I believe that at their root is an increasingly inadequate doctrine of God among God’s people.

As I’ve written before, evangelical churches are increasingly moving away from doctrinal teaching about God and His sovereign prerogatives as God to a doctrinal approach that exalts personal feeling and experience.

When we don’t know at a truly fundamental, life-changing level what it means to say that God is sovereign, it shows up in practical ways. It shows up in campaigns that rely on emotional manipulation, which is rooted in deception. It shows up in silence and avoidance when it comes to issues of human sexuality and marriage, as my friend John Stonestreet so ably explained on BreakPoint this week.

In other words, this growing doctrinal weakness in evangelical thinking is not just a personal and private matter; it has public consequences.

The Unsettling Conclusion

Abraham Kuyper, an ordained minister and former Prime Minister in the Netherlands at the turn of the 19th century, wrote:

If a people is serious, its government cannot be light-hearted. A people that seeks God cannot be governed unless the [ruler] allows himself to be governed by God’s Word. The spirit of a nation and the spirit of its government may be distinct, but they are not hermetically sealed from one another. They interpenetrate. Thus if a government knows that enacting laws according to the demands of God’s Word will meet with reluctance and resistance, it will be tempted to go astray itself and burn incense before the idols of the day. (emphasis supplied)

If Kuyper’s assessment is true, and I believe it is, then what we’ve experienced this campaign season exposes a form of idolatry that seems widespread among us. And that breaks my heart.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Republican gubernatorial candidates (listed alphabetically from left to right): Diane Black, Randy Boyd, Beth Harwell, and Bill Lee wearing the same T-shirt

Summing Up the Republican Gubernatorial Primary

I don’t watch much television for fear it will rot my mind, but I’ve sure heard complaints about all the “negative” television ads and mail pieces paid for by some Republican gubernatorial hopefuls. Whether perceived by voters as negative or not, ads and literature that truthfully point out another candidate’s record provide helpful information. But what I’ve heard from many is that they don’t know what to believe or what to make of the information they’ve been given, so here are some thoughts about some of what I’ve seen and read.

The Bottom Line

First, this thought keeps running through my head: There is none righteous, no not one. Though, as a Christian, I believe that God, by grace alone and by no merit of my own, has imputed to me the righteousness of Christ, I am not righteous in myself and fall short of the mark every day. I fall short of God’s standards individually, as a state senator, and as a lobbyist. The same is true of all the candidates of both parties.

I can give you reasons why you might not want to vote for any one of the Republican gubernatorial candidates, though for some that list might be longer than for others. Saying that might make all the candidates mad at me, except, perhaps, for the candidate who may really fit the following criteria.

Given that no candidate (or person) is perfect, I think we need to be asking ourselves which candidate we think is most likely to:

  • understand that power and authority come from God (Daniel 4:30, 34–37) and not take lightly the fact that they will give an account to God for their political activities and policy decisions (Amos 4:12; Hebrews 12:28–29),
  • fear God more than any person or organization and know that his or her victory (and all future “policy victories”) comes from the Lord, not campaign strategies (1 Samuel 12:24; Proverbs 8:15),
  • keep away the wicked from among his or her circle of advisors (Proverbs 20:8, 25:5),
  • be guided by wise counselors (Proverbs 15:22, 24:6; Exodus 18:21) who know how to help him or her “search out a matter” (Proverbs 25:2) that God may have hidden for only the wise and humble of heart to find (Proverbs 2:4; Matthew 11:25),
  • see and respect, as David did, the hand of the sovereign God in those who oppose him or her (2 Samuel 16:11-12) and look to God for his or her defense, as Moses did with Miriam and Korah (Numbers 12:1–3, 16:1–33), and perhaps most importantly,
  • have a broken and contrite heart and reverse course when confronted by wise counselors about errors in attitudes, actions, and policy judgments (2 Samuel 12:7–13; Psalm 51).

I’d encourage you to read the verses, but those things, I think, reflect a ruler whose heart is one after God’s heart (1 Samuel 13:14), and if it was good enough for God, it should be good enough for us.

Why We Get Negative Ads

Another preliminary thought is this: Judging candidates on the above considerations is hard because very little of what candidates say addresses them. Probably no candidate would perfectly qualify anyway. But as much as we think negative campaigning reflects on a candidate, we need to understand that it also reflects on us, the electorate, because candidates tell us what they think we want or need to know. We get negative campaigns for a reason.

So, as voters going forward, let’s raise the standard by which we judge candidates. If we do, then perhaps candidates will tell us more about themselves and a little less about the other candidates in order to meet our standard.

Given the foregoing, here, then, are some of my thoughts about some of the negative ads (too many to address them all), and they pertain to ads you may be seeing even in state legislative races.

What to Make of the Attack Ads Relative to Trump

There have been many statements by multiple candidates about who really supports President Trump. To be honest, what I’ve seen doesn’t mean a whole lot to me.

First, I don’t think President Trump or his views on anything are the barometer by which any Christian should judge the righteousness or justice of any political policies.

Second, President Trump is dealing with federal issues and not state issues. For example, one can think “building a wall” across the entire U.S.-Mexican border is or is not practical or feasible, and it has little to do, in my opinion, with state banishment of already-banished sanctuary cities or the state providing greater college tuition subsidies for children of illegal immigrants. DACA may be relevant to the latter state issue, but just don’t assume federal issues and state issues make for an apples-to-apples comparison to state issues and draw conclusions that require a leap in logic.

Third, what does “support” for Trump even mean, given that in the Tennessee Republican presidential primary, 392,000 Republicans voted either for Rubio or Cruz and 333,000 voted for Trump?

Since no Republican gubernatorial candidate has been tagged with voting for Clinton over Trump, “support” can only mean trivial, irrelevant things like whether a candidate gave to Trump’s general election or attended his inaugural ball.

Giving Money to Democrats and Trump

What I’ve seen in this regard has been about money given or not given to Democratic candidates and to Trump’s election.

I “get” the response that candidates sometimes give political contributions for business reasons. I know plenty of Christian business owners I respect who give money to candidates based on business considerations. However, political contributions by candidates are relevant to me, but perhaps not for the reason you think.

What Contributions Mean to Me

At one time, I might have seen relatively small amounts given to a Democratic candidate from time to time as a sure sign that the donor’s policy views are moderate. However, I am realizing that a stronger indicator of political moderation is refusing to answer the kinds of controversial social questions we ask, as Beth Harwell, endorsed by two government employee unions, did.1 Now I ask harder questions about contributions, such as whether they are a sign of either naivety in the ways of politics or a sign of pragmatism.

As to the latter, it may come as a shock to many Christians, but pragmatism in the true sense of the word is a worldview. It denies our ability to judge/evaluate things on the basis of absolute truths; instead, it’s just a matter of “what works.” So, the bigger worldview issue for me is this: What might a candidate’s contributions tell me about his or her understanding of stewardship and his or her view of how comprehensive the claims of God are to our lives?

I can make the argument that political contributions for business reasons reflect the degree to which the candidate making them looks to God for economic blessing and favor or to the influence of the politician asking for the contribution or the favor of the business client asking for the contribution. Saying “no” is hard in these situations, but it can reflect the political donor’s willingness to be content with whatever comes from losing human favor if the contribution is not made. These decisions will only get harder after one is elected.

Judging the Contribution Worldview

This is an admittedly hard-line “test” for any candidate (or Christian business owner) at any political level. And it can be difficult to judge or reach a conclusion in this regard for this reason: Such worldview thinking may be new to many Christians and candidates, given the extent to which so many evangelical churches now emphasize a pietism that compartmentalizes public and private values and make doctrine about God less important than feeling and emotion.

Many ministers don’t talk about biblical considerations in connection with voting, let alone how to think through making political contributions, and many of them don’t for fear those topics will result in lost contributions. It’s not surprising that the sheep would go astray if the shepherd doesn’t lead.

Consequently, each person will have to decide how to weigh this factor in view of a candidate’s whole record, but the standard and weight applied to contributions made or not made must be applied to all.


  1. Conversely, providing an answer to our questions doesn’t make one a conservative; the answer is the key.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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chalkboard and school books with campaign hat

The ‘Stinking Thinking’ of Politicians on Education

Recently, I sat in a meeting with some politicians and couldn’t help but think about what a Christian lawyer discussing religious liberty litigation said a few years ago, “Stupid for Jesus is still stupid.” It has stuck with me ever since. What I’ve heard from some politicians over the past several months is “stinking thinking,” and it would be good to consider how it applies to an issue in the Republican gubernatorial primary.

The Stinking Thinking of Christian Candidates on Education

To lay the groundwork for discussing the gubernatorial primary, I’ll put the concept of stinking thinking in regard to education in the context of a recent exchange among several state legislative candidates arising out of one candidate’s emphasis on children having an education that instills in them Christian ethical/moral values.

I think that candidate was probably thinking of the state providing more educational choices for parents outside of public education, but the context in which the subject was raised probably left some wondering if the candidate thought public schools should teach those values.

Opponents quickly jumped on the point by saying that public schools can’t teach values and that values have to be taught in the home. I think I understand that comment, too—public schools can’t say, “God and the Bible teach us not to steal, kill, or bear false witness.”

But stinking thinking applauds these latter statements without realizing that public schools teach values every day and that they implicitly, if not explicitly, teach some bad values.

The Values Public Schools Teach Every Day

A candidate who says public schools can’t teach students that God does not want us stealing, killing, and bearing false witness is legally correct, but any candidate who would make the more general statement that schools can’t  or don’t teach values doesn’t understand that public schools, in general, teach values all the time. One thing they implicitly teach children is that “values” are private things, not public things. Should we be surprised, then, that so many young adults now think that “values” are private things that should not influence public policy?

Of course, some public schools do teach “character education,” but it is necessarily divorced from God, because to connect those values to any foundation other than practical atheism is viewed as the “establishment” of religion.

Those blinded by stinking thinking don’t understand that this way of teaching values teaches children that “good” values exist apart from a God whose nature is the basis of those values and the authority that makes them binding on us.

This kind of stinking thinking upholds the belief that “we can be good without God,” which is what atheists think. If the child asks why these values are good, the most a public school can do is share the worldview of pragmatism that says these values seem to “work,” which only means they work for most people and at most times. Of course, to say that, in turn, tells the thinking student that those values may not work for him or her and they are not real values that transcend time, place, and cultures. That kind of stinking thinking by a professing Christian candidate is quite a departure from what the Bible actually says is true about fallen humanity.

The Root of Stinking Thinking About Values

In the early ‘60s, I went to a public school that did many things that would subject them to lawsuits, like having a Bible teacher come to class once a week and having students memorize the Christmas story in Luke.

Today, public schools operate on the stinking thinking that education can be value neutral with respect to God. That kind of thinking is impossible. Even the cry of the French Revolution’s atheistic leaders—“No God, No Master”—rested on a religious presupposition.

Once Christians and Christian politicians wake up to the fact that the God revealed in the Bible means necessarily that nothing can be religiously neutral, that everything must be understood in relation to the Creator God, then we’ll begin to make improvements in the education of our children.

Avoid Stinking Thinking on Education in the Republican Gubernatorial Primary

The foregoing relates to what I heard state legislative candidates discussing, but voters need to think about how our gubernatorial candidates talk about public education and what, by implication, they think its purpose is.

Do the ways in which they speak of public education tend to reflect a view that education produces human “widgets” to plug into the economy or an understanding that a good education addresses the whole of the human being?

For example, look at how open they are to allowing parents (and only some or all?) means by which they can minimize the impact of today’s public schools on their children’s values. By this, however, I don’t just mean whether a candidate supports vouchers and charter schools. The real issue is why he or she supports those policies; those policies can still rest on a belief that government, not parents, must be in control of the education of children.

Consider, too, how they think about sex education and parental rights to exempt their children from the teaching of certain materials; parental access to other types of student materials, especially digital and online materials used in the classroom; and parental consent to (or only notice of?) psychological or values testing. Think of where they stand on the “transgender” issues in connection with public school locker rooms and bathrooms. As I explained in a previous commentary, this is a huge worldview indicator; a school’s policy on this issue (and even the absence of such a policy) sends a clear message to students about the nature of human sexuality.

At this link you can click on the name of the leading Republican gubernatorial candidates and access their campaign websites for their views on education and compare, at this link, how they responded to a question about school systems being protected by the state if they refuse to affirm “transgender” ideology that disregards biological realities when it comes to the use of locker rooms and bathrooms.

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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