Democracy Dies When Elections Don’t Matter (concluded)

Gerrymandering harms democracy by making votes unequal. The North Carolina electorate splits roughly equally between Republicans and Democrats. Thus, the democratic result should be that the fourteen representatives that the state sends to Congress should be equally divided between the parties. North Carolina, however, has been severely gerrymandered, and ten of the representatives have been Republicans. Therefore, half the people elect 70% of the representatives and their votes count more than those of the other half. Of course, gerrymandering has been with us from the inception of the republic, but today, with modern tools of data collection and analyses, rigging districts is easier and more exacting. The partisan goal is to make as many “safe” districts for a party on the electoral map as possible and to undercut the democratic notion that the voting majority should control.

Legal remedies for changing this are weak or nonexistent.  Gerrymandered state legislatures draw lines so that one party will have more state representatives than warranted by the statewide popular vote. To change this, the other party has to get more than a majority that it would need to remove a disfavored governor. Instead, the lesser party must not only retain its majority in the minority of districts where it now wins, but also get majorities in the districts that are stacked against them because of gerrymandering. The disfavored party will in reality need a supermajority of votes to get the governmental reins while the party that gerrymandered can retrain control with a minority of the vote.

The United States confronted a similar situation in the second half of the twentieth century. At that time some states did not require periodic redistricting of their state legislature. With population growths and shifts, legislative districts that once may have held equal populations became different in size, but each was still entitled to the same representation in the state capital. In Tennessee, two-thirds of the state representatives were elected by one-third of the state’s voters. One Alabama district had a population of 634,864 and another had 15,000 and each had one state senator. Within each district, votes were equal, but when the state was looked at as a whole, votes were unequal, and the electoral process was not about to change that. Representatives from small districts did not willingly give up their disproportionate power.

This only changed because the United States Supreme Court stepped in and adopted what now is called the one person, one vote doctrine. The constitutional guarantee of equal protection, the Court recognized, requires that each vote within a state be equal to all the other votes in the state, and therefore legislative districts would have to have comparable populations.

The recent Supreme Court, however, has viewed partisan gerrymandering differently. Rucho v. Common Cause, decided in 2019, said that “partisan gerrymandering” may be “incompatible with democratic principles.” Even so the 5-4 decision, written by Justice Roberts, said that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” If gerrymandering is a political question as the Court stated, you might think that there would be a political process to address any problems, but the Court, for the good reason that there is none, did not suggest one. It is as if the umpires turned their backs and walked off the field saying that while it does not seem right, the home team can call balls and strikes. And, thus, the constitutional rights to equal protection and due process do not govern partisan gerrymandering.

Of course, the goal of gerrymandering is not only to make votes unequal, it also seeks to make elections meaningless. Originally gerrymandering was about individuals. Legislative districts were manipulated to have a particular person elected or defeated, but that changed over time to ensure that the member of a particular party, no matter who the individual candidate was, would win the seat. In a successfully gerrymandered district, the election is not about voter turnout, issues, or even personalities. The outcome is set by the district lines that are drawn before the election. The ballots are a mere formality. I see reports of elections from various autocratic countries where the leader gets a ludicrous percentage of the votes, often just short of 100%. The election, of course, is a sham; it is meaningless, and it means that that country is not a democracy. A gerrymandered district in the United States where the election is meaningless is not part of a democracy either.

Friends discount this by telling me that all sides try to draw district lines to their advantage. That has been true, but we should recognize that partisan gerrymandering of the sort we now have does not have ancient roots. Commentators see it starting in the last two decades of the twentieth century. By 2000, 300 of 435 House seats were safe for one party or the other, but now safe seats have increased. News reports in 2020 said that perhaps only fifty seats were truly contested ones, and after the round of gerrymandering that followed the last census that number may be lower.

Reform seems remote. Gerrymandered state legislatures are unlikely to ungerrymander themselves, which gives the incentive for gerrymandering elsewhere. If a surfeit of Republicans is produced in one state, a Democratic state quite naturally seeks to gerrymander its bailiwick for balance. State courts are the only possibility of reform, but not all, if any, state courts will address the undemocratic process,* and uneven reform may merely yield additional power to the political party that will still be able to gerrymander in other places.**

Finally, there is another potential challenge to our democracy, which could be the most devastating one. Right now, gerrymandering undercuts democracy, but it does not affect the presidential vote or statewide elections such as that for governor. Of course, it matters if voters do not have equal access for these non-gerrymandered elections, but the balloting still matters. However, we now have movements to change the vote counting and certification processes with the suggestions that the new officials will have the power to overturn elections when they don’t like the outcomes. We have the potential that no election will matter in the future.

And then democracy will not just be waning or under attack; it will be dead.***


*Civics courses have taught that the lower houses of the national and state legislatures are the most democratic and representative of our governmental institutions because the fewest number of voters select these representatives in frequent elections. With gerrymandering, however, these bodies have become unrepresentative of the people. The civics courses have often concluded that the courts are the least democratic of our institutions since they are the most removed from the electorate. But when state supreme court judges are elected in non-gerrymandered statewide election, the state supreme courts may be more democratic than the legislatures.

**Gerrymandering has harmed government also by increasing uncompromising partisanship. In a safe district, a candidate does not have to appeal to the other side or even to the center to get elected. The candidate merely must win the party’s primary. The candidate does not ever have to appeal to the majority of the electorate, but only to the partisans voting in the primary. And when elected, members from gerrymandering district can indulge their partisan ideology without political retribution. We become a more divided country as a result.

***It was funny, and ludicrous, when Pat Paulsen, the comedian a generation or so ago, who “ran” for President, said, “I want to be elected by the people, for the people, and in spite of the people.” We now live in a world where “in spite of the people” is a dominant political strategy.

Post-Pandemic Dispositions (continued)

 Our politics, of course, have always brought divisions. We did, after all, have a civil war, and we had adamant opposition to FDR, Kennedy, Reagan, and many other political leaders. Even so, it feels as if our politics are more divided than ever. In one sense it is because the dividing lines are more partisan than ever. For a long stretch, the two major parties were more ideologically diverse within their own ranks than they are now. When each party encompassed conservatives, moderates, and liberals, party discipline was impossible, and coalitions were common across party lines. For example, the landmark Civil Rights Act of 1964 was passed with both Democratic and Republican votes. Robert G. Kaiser in Act of Congress: How America’s Essential Institution Works, and How It Doesn’t, a fascinating study of the passage of the Dodd-Frank Act in the wake of the financial crisis, states that this cooperating dynamic changed when Newt Gingrich and his team in 1995 put a premium on party discipline.

 This bipartisan divide can be seen starkly in the demise of the conference committee.  Almost always when one House of Congress passes a bill and then the other does, there are differences between the two bills. For a hundred years or more, a conference committee then sought to reconcile the varying provisions which would then become the law. That committee consisted of representatives from each chamber and would include members from each party roughly in proportion to each party’s membership in each House. Gingrich did not support this traditional conference committee because it gave a role to minority Democrats, whom he had demonized to get a Republican majority. He insisted instead that the Senate negotiate differences in passed bills with him and the rest of House leadership. When the Democrats regained the House in 2006, they followed Gingrich’s methods. In 2007-08, only 2% of bills that became law went through a conference committee.

Gerrymandering has also intensified the partisan divide. Gerrymandering has been with us since the opening days of the Republic. For example, Patrick Henry disdained James Madison and had Virginia gerrymandered seeking to deprive Madison a seat in the first Congress. (Madison still won.)

Originally gerrymandering was about individuals. Legislative districts were manipulated in order to have a particular person elected or defeated, but that changed over time to ensure that the member of a particular party, no matter who the individual candidate was, would win the seat. Kaiser sees that change starting in California in 1982. By 2000, 300 of 435 House seats were safe for one party or the other. In a safe district, a candidate does not have to appeal to the other side or even to the center to get elected. The candidate merely must win the party’s primary. When elected, members can indulge their ideology without political retribution. Partisan divides increase.

The political divide has hardened not only because of increased partisanship and gerrymandering but also because of the philosophy of modern Republicans. As Kaiser states, since President Reagan, the Republican party has not believed in governance and has sought to diminish the role of government as an end in itself. Conservatism no longer means seeking legislation based on conservative principles; it means diminishing government. Period. Obamacare is an example. Trump and other conservatives ran on repealing Obamacare and replacing it with something “better.” Obamacare certainly has flaws, and health insurance certainly could use improvements, but the Republicans never dug into conservative principles to propose a better system. The Republicans just wanted to end Obamacare seeing it simply as more government.

We can also see the Republican modern principles in the cry against regulations. Republicans do not propose regulations, which after all have the goal of protecting the general welfare, based on conservative principles. The goal is just to wipe out regulations and to get rid of government oversight of…well, just about anything. The recent Republican party has primarily stood for lower taxes, a strategy aimed at “starving the beast,” and the appointment of “conservative” judges with a goal that the courts will strike down various regulations and legislation to lessen government involvement.

When one party has the primary goal of not governing, the two parties are simply not involved in the same governing game. Filibusters illustrate. The filibuster is a device to prevent government from operating. It has long existed, but until recently it was rarely employed. There were fifteen Senate cloture motions, or a filibuster, in 1970, and in the1980s, for a two-year Congress, there were no more than eighty. But after the Democrats regained the Senate, cloture motions leapt to 139 in 2007-08 and to 137 in 2009-10. As Kaiser states, Mitch McConnell, the Republican leader of the Senate, “adopted the threat of a filibuster as a basic tactic.” “Let’s not govern” really should have been the motto.

          Might the pandemic, however, change or break some of our political, social, and cultural divides? The coronavirus outbreak is a communal event in that it affects nearly all Americans in their regular behavior and will for a significant period. Yes, the pandemic’s epicenter is now New York. Yes, it has affected black and poor communities harder than others. Yes, the rich have more opportunities to mitigate the effects. Yes, there are orchestrated demonstrations against stay-at-home directives. But the attempts to control the spread of Covid-19 has affected and will continue to affect a vast majority of the country. Although the effects may vary, it touches the rich and the poor; the highly and less educated; the young and old; the Catholic, the Baptist, and the areligious; the immigrant and the native born; those with children and those without; the conservative, the liberal, and the apolitical.

The effects have not been a mere minor disruption of lives. Businesses, schools, and churches are closed. Unemployment has skyrocketed; education has had to take new forms; travel for many has ceased; social distancing and lockdowns prevent gatherings of families and friends and the suspension of movies, concerts, and sports. While we can hope that conditions will improve so that some restrictions can be eased, the pandemic will continue to affect us until a vaccine is developed and the vast majority of Americans are vaccinated, which seems likely to be more than a year away.

Already there is much speculation about the lasting changes this will bring, and which businesses, nonprofits, and colleges will not survive and which will come out stronger and whether the work-at-home phenomenon and online learning will transform future work and education patterns.

(concluded May 1)

Principles and Partisanship

The congressional vote to rescind the president’s declaration of a national emergency at the southern border fascinates. It lines up partisanship against principle and will probably indicate how little principles matter. Although many Republicans claim constitutional ideals that should lead them to vote against the declaration, few will.

On March 1, 2019, I posted an essay about the 1977 controversy over the Panama Canal Treaties. Proponent of the treaties thought them desirable because they gave America the right to ensure the canal’s neutrality while removing a flashpoint for much of Latin America, and Panama in particular, by giving Panama control over the canal.  The treaty advocates maintained that the treaties would increase the security of the canal by helping to remove the threat of guerrilla attacks, which were almost impossible to defend against.

While prominent conservatives, including Henry Kissinger and William Buckley, backed the treaties, other conservatives in near-hysterical terms attacked ratification.  The treaties, they argued, were a surrender of American sovereignty, and furthermore, the military leader of Panama was pro-Communist.  Communists would control the canal and Panama, and the subsequent harm to the US would be incalculable. The anti-treaties conservatives made the vote on the Panama Canal a litmus test for a new conservatism. Senators supporting adoption of the treaties drew the ire of a newly mobilized conservative mass. Some Republican Senators, however, did recognize that the treaties were good for this country and voted to ratify. These principled politicians were not rewarded with profile in courage badges. Instead, almost all those Republicans voting yes paid a price imposed on them by the booboosie conservatives. On the other hand, history has shown that those who opposed the treaties were not only wrong but often quite stupid in their opposition. Even so, the opponents of the treaty often benefited from their opposition.

Although the actual controversy over the Panama Canal Treaties may be largely forgotten (which is not surprising since many in Congress show the most superficial knowledge of our history), the political consequences of the treaties battle have been absorbed into the conservative DNA. Don’t vote your principles if that goes against what the right-wing rabble wants. You may lose your office as the conservatives whip up conservative opposition to you.

Even back in 1977, only a few conservatives could bring themselves to vote for the treaties, either because they were not bright enough to understand it was the right choice or they felt more partisan than principled. Since then Congress has become even more partisan and elected Republican conservatives even less principled so the needed Republican votes against the “national emergency” are not likely to be there. (This is not to suggest that all the Democratic votes against the national emergency are principled. There are many reasons for a vote against the president’s declaration: there is no emergency at the southern border; there is an emergency, but a border wall does not meaningfully address it; the president’s declaration contravenes our constitutional separation of powers. And, of course, partisanship.)

The changed nature of Congress was driven home to me by reading Act of Congress: How America’s Essential Institution Works, and How It Doesn’t by Robert G. Kaiser, published in 2013. The book chronicles the passage of the Dodd-Frank act. In doing so, Kaiser explains how Congress starting in the last third of the twentieth century became increasingly partisan.

Perhaps surprisingly, part of the reason for the partisanship is social. No longer do congresspeople live in Washington. At one time, it was common for Senators and Representatives to move to Washington and raise their families there. That led to socializing across party lines. The demonization of opponents was less likely if the politicians frequently shared bourbon, veal cutlets, or a deck of cards together. But representatives now seldom get to know each other. Instead, conservatives increasingly made “Washington” an epithet. Anyone who spent excessive time there was suspect. Then Congressional rules increased reimbursements for travel to home districts. The Washington work week is now generally three, and at most four, days, and representatives go back “home” nearly every week. With lesser contact across party lines, there was a diminished need for politeness.

The demonization of political opponents also increased as safe seats multiplied. Gerrymandering started in the early 1800s, but it changed in 1982 when California drew House districts across the state to increase Democratic representation. Republicans took the hint and became even more proficient at creating safe seats for their party. Kaiser reports that by 2000, 300 of the 435 House seats were secure, and that number has increased since then. Representatives who do not have to seek votes across party lines or even from the center can indulge their political ideology and demonizing rhetoric without fear of retribution.

The cost of elections also increased and fundraising by politicians is now constant. This not only means less time for legislating, it has also led to an era of permanent campaigning. At one time representatives between elections concentrated on the business of governing. They sought respect from their colleagues because this standing made them more effective legislators. Now, always in campaign mode, our representatives are not as concerned with legislative accomplishments as with media attention, which is often garnered with extreme partisanship. We all, apparently, love a good fight and colorful epithets.

(continued March 25)