How Much Is Too Much?

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A Sense of Entitlement

America has just witnessed the least competitive congressional election in its history. The founding fathers framed the Constitution so that the House of Representatives reflected the prevailing mood of the people. That's why elections are held every two years. The Senate, meanwhile, was designed to be less subject to voters' whims. But over time, says John Alford of Rice University, they've swapped roles.

The U.S. House is now remarkably unresponsive to changes in public opinion," says Alford. "It has become the constitutional Senate of the United States government. So the Senate was built to be unresponsive-initially no elections at all. And even with elections, six-year terms, and staggered. It's impossible to turn the Senate over in a single election. That was to slow down public mood. It's now relatively easy to turn the Senate over. The Senate turns over, now, much more rapidly than the House. It flip-flops back and forth. If there's a real public mood change, the Senate leads the change; the House follows. The House is now so tightly redistricted in terms of partisan advantage, it's not clear that anything could change partisan control in the House, in terms of public mood. So the House now is a barrier to public influence, and the Senate is really the only place for public influence. If you look at what senators do now in terms of local public service, what used to be called 'casework,' it's almost all senatorial. If there's going to be a military base that's going to be closed, a senator comes in and says, 'I'll save it.' If there's a new plant opened, the senator's there cutting the ribbon. That used to be House members that do that. They don't need to do that anymore. Their districts are so heavily Republican or Democratic that they don't really do constituency service."

As well as being unresponsive to public mood, the fact that it verges on the impossible for voters to kick out incumbents has bred a degree of arrogance in the House of Representatives. In fact, some analysts even liken members of the U.S. Congress to British peers-members of the House of Lords, The United Kingdom's Upper House.

"They act with a complete sense of entitlement," says Samuel Issacharoff of Columbia University, "as if having a district is like a peerage: it's yours for life. In the last round in New York, for example, one senior congressman was put into a district that actually turned out to be competitive. And he went to the party bosses, and then, ultimately, to the apportionment commission complaining that he had once run in a competitive election in the 1970s and was outraged that it would be his turn to do so again. 'Let somebody else do that,' he said. 'This is my seat.' And that is fairly typical of the sense of entitlement that running repeatedly in non-competitive elections breeds in the representatives. It also corrodes their sense that they're supposed to do the bidding of their constituents, because they are essentially untouchable."

From Texas to Pennsylvania and Maryland to Colorado, gerrymandering has spread like wildfire through American politics over the past five years. But can the flames be doused? The Democrats appealed against the Texas gerrymander, and the U.S. Supreme Court has recently ordered the case back to a lower court. D.C. Lawyer Sam Hirsch is representing the Texas Democrats. He also represented the party in a similar case, the Pennsylvania gerrymander, which the Supreme Court considered back in April.

"After the 2000 census," says Hirsch, "Pennsylvania had grown more slowly than the rest of the United States. So instead of having 21 congressional seats, it was only going to have 19. And they had to redraw them to be of equal population. At the time, the Republicans controlled the state Senate, the state House and the governorship in Pennsylvania, and they drew a really bizarre map with all sorts of peculiar shapes, designed to pack the state's Democratic voters into a handful of districts, and make all the other districts safely, but not overwhelmingly, Republican. By doing so, they were hoping to take a slightly Democratic leaning state and generate for that state, an overwhelmingly Republican congressional delegation. And they crammed this thing through the legislature, and succeeded in their goals, unfortunately. We challenged this map in court, and the case went all the way to the U.S. Supreme Court. And the Supreme Court justices fragmented very badly over this issue."

In fact, the nine justices deadlocked saying there was no clear, manageable "judicial standard" by which to decide the claim. And so, the controversial map was allowed to stand. In November's election, Pennsylvania's congressional delegation remained locked at 12 to 7 in favor of the Republicans. Many fear that this refusal to declare Pennsylvania's new map unconstitutional, will spark other, more extreme, gerrymanders. The problem for the courts is that there is no body of case law, which distinguishes between legally enshrined map redrawing and egregious gerrymandering.

But Sam Hirsch says different rules apply to the Texas case. "In Texas, there's a clear-cut rule you can apply. And that rule is that if you replace a map in the middle of a decade, even though it's perfectly lawful, for no reason other than partisan maximization, that's unconstitutional. And in that sense, it's very different from Pennsylvania, because it doesn't raise questions of, 'How much is too much?' It just raises a bright line rule that once you've put a new, redistricting map into effect, you leave it alone. And you let the voters decide, from then on, who will represent them in Congress, rather than the mapmakers deciding who will represent them."

By handing the case back to the lower court the Supreme Court is demonstrating an historical reluctance to get involved in such cases.

John Alford of Rice explains why. "The old argument against the court being involved here is something called a 'political thicket.' You know, the court should not be dragged into the political thicket. And reason is not because the court ought not to be political. The real reason is, that what it's like inside the political thicket, right? That once you're dragged into the political thicket, once they get your toe in the thicket, then they put your leg in the thicket. And then you're just bodily in there. Right? There's no way out of it. It is a commitment to an ongoing, escalating process. It is not a make a ruling and leave things for a later day. And so the court has found so many of its most difficult areas of jurisdiction to be these political thicket issues."

So if the courts won't rule, what other options are there? Well, one idea is for the individual states to set up versions of what happens in the United Kingdom. The U.K. boundary commissions are independent bodies, which redraw political lines in Britain every eight to 12 years, more or less free from political interference. A handful of states in the United States, including Iowa and New Jersey, have gone down that road.

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