The Control of the Congress and the Irrelevancy of American Elections

The Supreme Court wound up its term last week with two historically interesting decisions, one on redistricting, one on the military tribunals which President Bush sought to institute to try certain prisoners held at Guantanamo. The first, involving the reapportionment of Texas districts carried out in 2005 by the Texas Legislature after a prolonged struggle, reads, in some ways, better than I expected. The second, while it threw out the military tribunals as the Administration hoped to constitute them, nonetheless makes clear that we are in a long-term constitutional crisis.

Justice Anthony Kennedy, who has clearly taken over the swing-vote role which Owen Roberts played in the mid-1930s and Sandra Day O’Connor exercised in the last ten years, took a short-term historical approach to the challenges to the Texas redistricting plan. He went back to 1990, when Texas was already almost evenly divided between Republicans and Democrats but the Democrats still controlled the state government, and argued specifically that they had done an extraordinary job of gerrymandering themselves. By the year 2000, although the Republicans were winning 59% of the vote for statewide offices (not the best statistic—one would think that the overall Congressional vote would be more relevant), Democrats nonetheless won 17 out of 30 seats in Congress. A divided state government could not agree on a redistricting plan that would include the two new seats granted under the 2000 census, and a district court had to step in. It changed things as little as possible, and the Democrats continued to elect more than half of the Texas Congressmen.

Justice Kennedy and those who voted with him essentially argued that the Republicans were simply doing what the Democrats had done to them, and that they had no basis for objecting. That seems to me somewhat dubious. To begin with, the Republican vote for statewide offices bears no necessary relationship to how Texans choose to vote for Congress, when they frequently take note of services rendered by a representative regardless of policy. But in addition, Kennedy had to acknowledge that the Republicans have done more than conform to his rule of thumb. While receiving about 58% of the vote in statewide elections, they have now managed to elect, under their new plan, 21 out of 32 Congressmen, or 66% of the total.

As Kennedy points out, the courts have never agreed on what constitutes a gerrymander, and one must sympathize with their unwillingness to try to do so. At the same time, it is well known that both parties have used computer technology, among other methods, to push the art of gerrymandering to new heights on behalf of incumbents. I do not think, however, many people realize how bad the situation is—certainly I did not until I began scrolling through the 2004 Congressional election results looking for close elections. Not until I reached Colorado did I find one seat that was genuinely closely contested (California, with almost 50 seats, did not have one that was decided by less than 8% of the vote.) California, Colorado, Connecticut, Georgia, Illinois, Indiana, Louisiana, Minnesota, Missouri, New Mexico, North Carolina, Oregon, Virginia, and Washington State had one close race each, defining “close” very generously as a winning margin of less than 10% of the total votes cast! New York and Texas, ironically, tied for most “close” races with two each, and Texas barely missed having a third. Think about that. In an election won by the President by a margin of less than 3% of the vote, exactly 18 of 435 Congressmen were elected by margins of less than 10% of the total vote in their district. Wisconsin, one of the closest states in the Presidential vote, elected four Democrats and four Republicans to Congress. Six of them won by margins of more than two to one. This was not, obviously, unusual. At least 90% of Congressmen, it seems, are elect orally locked into their jobs. The Democrats need 15 seats to take over in November, but that will not, obviously be an easy mark to reach.

Let us get some historical perspective, which is, after all, the point of these essays. Things were very different 90 years ago, when the House first attained its membership of 435. The Republicans gained 66 seats in the 1914 elections and 63 more in the Harding landslide of 1920. The Democrats retaliated with a gain of 75 in 1922. The Republicans gained again in 1924 and 1928, but the Democrats increased by 53 seats in 1930 and by yet another 97 seats in 1932. They added a total of 20 more in 1934 and 1936, but the Republicans gained 80 seats in 1938, 47 more in wartime in 1942, and another 56 in 1946 to give them a majority for the first time since 1928. But Harry Truman’s very close victory in 1948 also won the Democrats 75 new House seats, of which 60 were lost in the next two elections of 1950 and 1952. The Democrats won another 49-seat landslide gain in 1958; the Republicans whittled it down in the next two elections, lost 37 seats in LBJ’s 1964 landslide, but won 47 new seats in 1966. By then the power of incumbency was becoming more pronounced, but after Watergate the Democrats won 49 seats in 1974. Nothing like that happened again until 1994, a full twenty years later, when the Republicans won 54 seats and the control of the House they have enjoyed ever since. My data set is incomplete, but I do not think either party has gained as many as 10 seats in any House election since then.

Having protected their narrow majority through gerrymandering, the Republican Party has also run the House dictatorially for the whole of the Bush Administration at least. Nor is this all Last week the House Republicans decided not to bring up an extension of the Voting Rights Act because half of their caucus objected to it, and they never move forward on anything without “a majority of a majority.” Think about that. In a country where the last two Presidential elections have been decided by razor-thin margins, half of the Republican Party—the more conservative half in this case, coming mainly from the old Confederacy—controls what shall and shall not be voted upon in the House of Representatives.

My late uncle Henry, who had a profound skepticism about the role of the courts in the political life of the late twentieth century, even opposed Baker v. Carr, the decision that insisted on equal districts for state legislatures in the early 1960s. When I asked him then what alternative he could see, since legislators from tiny districts would always protect their own seats, he replied that he would have preferred some kind of revolutionary action by urban populations. Now we have an equally large problem which the courts are not going to help. Since the only Congressmen unhappy with the current situation appear to be the four percent or so of them who have not managed to make their seats completely safe, the remedy will certainly not come from them or, as far as I can see, from state legislatures. And how can we expect the 90% of our citizens who live in safe districts to take Congressional elections seriously? Our politics are, literally, more impervious to electoral change than they have ever been, and this at a moment when the Executive branch is claiming unprecedented power. That, of course, was the subject of the second major decision last week, but that one will have to wait.