Congress is Broken. Fair Districts Could Help Fix It.
Nino Monea[*]
The Capitol Building. The bedrock of the first branch of government; home to the World’s Greatest Deliberative Body and the People’s House. Like no other structure, it stands as the very symbol of our system of self-governance.
Today, it is covered in a shroud as it undergoes renovations to patch up the 1,300 cracks that puncture the Dome. It was not just weather that slowly wrecked the façade, but also the longtime impasse between the Republican House and the Democratic Senate to come to an agreement on how to fund repairs.[2] The scaffolding symbolizes the current state of legislative paralysis. The fractures on the exterior may be extensive, but the divisions inside the building run much deeper.
It’s no secret that Washington is gridlocked. The new Congress that was sworn in last January will have small shoes to fill. The previous 113th Congress managed to pass 296 laws over the course of two years, a slight increase over the 112th, which passed 283.[3] For comparison, the “do-nothing” 80th Congress of President Truman’s ire passed 906.[4] To make matters worse, and about a quarter of the laws passed by the 113th Congress were ceremonial acts like naming post offices, and roughly a third of the most recent Congress’s laws were crammed in the lame duck session at the very end of the term.[5]
There is no shortage of grim statistics about the body. Three quarters of votes cast are split mainly down party lines─Democrats clearly on one side, Republicans on the other.[6] Approval ratings have sunk as low as 9%.[7] So deep was the distain that when Congress was pitted against head lice, 67% of respondents expressed approval of the louse over the legislature.[8] Election spending in the 2014 midterms by outside groups was more than triple the level seen in 2010.[9] Political polarization between the parties is at its highest point in a hundred years.[10] I could go on.
The roots of these problems run deep. In the early and middle years of the 20th century, the two political parties were spread throughout the country. The Democrats controlled most of the conservative south, but also had liberal pockets in the north. Republicans held parts of the west, and had solid footholds in New England as well. The result was that regional factors mitigated partisan influences, and both parties had a wide range of viewpoints.[11]
Today, both parties have become consolidated, and much more ideologically homogeneous as a result. It has reached such a point that every single Republican in Congress is more conservative than any Democrat, and every Democrat is more liberal than any Republican.[12] The nation too has been experiencing a growing partisan divide.
The gap between Republican and Democratic voters has nearly doubled over the last 30 years on a series of 48 questions about values ranging from the social safety net, to the environment, to the scope of government. In 1987, there was a 10% disparity between the answers of Democrats and Republicans, by 2012, it has risen to 18%.[13] A quarter of Democrats and a third of Republicans see the other party as not simply incorrect, but “a threat to the nation’s wellbeing.”[14]
Such a state of affairs helps no one. Supporters of President Obama must watch as his agenda festers. But the situation is not necessarily good for conservatives either. A Congress that cannot pass laws is also a Congress that cannot repeal or replace bad ones. When legislative gridlock sets in, desperate lawmakers often resort to passing continuing resolutions, which base funding on levels of the past rather than the needs of the future.[15] The body has staged dozens of votes to strike down the Affordable Care Act, but has failed every time. Furthermore, when Congress does not act, the President may opt for unilateral action, which is hardly something Republicans are celebrating.
One key driver of the problem is gerrymandering. Politically motivated redistricting has virtually guaranteed that Congress will be bitterly split, as most incumbents have incredibly safe districts. 85% of House members won with 55% of the vote or more,[16] a comfortable margin. After the 2012 elections, in the House, 95% of Democrats represented districts that President Obama carried, and 95% of Republicans were in districts Governor Romney won. Only about 25% of senators represent states that voted for a presidential candidate of the opposing party.[17]
As a result, there is almost no political incentive to compromise for the vast majority of members. They have little to fear from general elections, where their constituencies are starkly polarized, but reaching out to the other side could throw their ideological purity into question and prompt a primary challenge.
To begin fixing this, we should end gerrymandering. As the current system exists, state legislatures draw congressional districts. Naturally, they try to do so in a way that maximizes their own clout and minimize the strength of the opposition. This practice undermines public confidence in government. Roughly 70% of Americans oppose gerrymandering. This holds constant whether the respondent is a Democrat, Republican, or Independent, or whether they are liberal, conservative, or moderate.[18]
Based on the current political calculus, gerrymandering favors Republicans on average. After a strong showing in the 2010 elections, the GOP was well poised to redraw boundaries for their own benefit. For instance, in Michigan, the Democratic candidates for Congress received 1.52 million votes (49%), compared to the Republicans’ 1.46 million (47%), and yet only received 5 of the state’s 14 congressional seats. However, the issue cuts both ways. In Illinois, Republican congressional candidates received slightly above 50% of the vote, but only have a third of the seats in Congress.
There are several ways to address this problem. Florida voters recently passed a state constitutional amendment that stops legislators from redistricting in a way that advantages or disadvantages any political party or incumbent. Although this led to 2 of the state’s 27 congressional districts being challenged as unfair, it does not go so far so to ban politically motivated gerrymandering altogether, and there are allegations that legislators were trying to circumvent the new rules.[19]
Several states have turned the process over to non-partisan commissions, including Iowa, California, and Arizona. There is at least some evidence that this reduced undue political influence. According to data compiled by the Washington Post, Arizona has below average levels of gerrymandering, and Iowa, which has had its commission since 1981, much longer than the others, scored considerably below average.[20] Admittedly, California is just slightly above average. There is also a case pending before the Supreme Court to challenge this practice, arguing that the voter initiative-created nonpartisan commissions, as opposed to commissions created by a vote of the legislature, rob the states of their constitutional authority to prescribe “The Times, Places, and Manner of holding Elections for Senators and Representatives.”[21]
Perhaps the simplest plan suggested is to use a computer algorithm to aid the process. If the program could be designed correctly, it could help reduce the bias that is inherent in such a politically charged undertaking. There are many examples to look to. Massachusetts software engineer Brian Olson has designed a program that redraws every state and federal legislative district based on Census data to create “optimally compact” boundaries.[22]
A look at North Carolina’s Congressional Districts as drawn by the self-interested legislators versus Olson’s program show a clear distinction. The former looks like one of Picasso’s cubist abstractions; the latter an orderly set of tiles. To be sure, this algorithm isn’t perfect. It does not specifically attempt to draw politically balanced districts, nor does it factor in communities of interest, such as minority groups that have been politically marginalized.
The Constitution precludes the federal government from passing a national law to change the system. Therefore, I propose that each state should work to create a nonpartisan process to produce impartial districts for its legislature. Existing models in several states could serve as a framework, and I would add some guiding principles for the process. The goal should be to take politics out of the process, work towards preventing extremist districts, protect communities of interest, and create clean shapes as opposed to narrow, snaking districts that reek of political back dealing. State board could even work to create an algorithm, with input from the public, to help streamline the process. Whatever process is decided, it should be transparent and freely available online so that the public can view it.
Ending gerrymandering will not singlehandedly solve gridlock. This is evidence to suggest that much of the polarization is due to the parties hardening their positions across the board.[23] But it would help reverse the trend of swing districts rapidly disappearing. In a time where too many voters feel as if their ballots don’t actually matter, anything to help increase competition would be welcome.
[*] J.D. Candidate, Harvard Law School, 2017; B.A., Eastern Michigan University.
[2] Jennifer Steinhauer, Capitol Dome Is Imperiled by 1,300 Cracks and Partisan Rift, N.Y. Times (Aug. 24, 2012), https://www.nytimes.com/2012/08/25/us/politics/capitol-dome-is-imperiled-by-cracks-and-a-partisan-divide.html [https://perma.cc/VP8G-ZH96].
[3] Kendall Breitman, The Worst Congress Ever? Maybe Not., Politico (Dec. 29, 2014), https://www.politico.com/story/2014/12/113th-congress-not-worst-ever-113850 [https://perma.cc/T847-Q5Y9].
[4] Kyle Inskeep, Congress to make history—but for the wrong reason, NBC News: FirstRead (Nov. 28, 2012: 1:11 PM), http://firstread.nbcnews.com/_news/2012/11/28/15518240-congress-to-make-history-but-for-the-wrong-reason [https://perma.cc/Z3WB-U984].
[5] Breitman, supra note 2.
[6] Ezra Klein, 14 reasons why this is the worst Congress ever, Wash. Post: Wonkblog (July 13, 2012), https://www.washingtonpost.com/news/wonk/wp/2012/07/13/13-reasons-why-this-is-the-worst-congress-ever/ [https://perma.cc/NZU9-LN77].
[7] Tom Jensen, Congress Less Popular than Cockroaches, Traffic Jams, Pub. Pol’y Polling (Jan. 8, 2013), https://www.publicpolicypolling.com/wp-content/uploads/sites/86/2017/09/PPP_Release_Natl_010813_.pdf [https://perma.cc/737L-XHQM].
[8] Id. Congress also lost matchups against colonoscopies (58-31%), Genghis Khan (41-37%), and Nickleback (39-32%). Congress did manage to narrowly beat out Lindsey Lohan (45-41%).
[9] Jon Terbush, The 2014 midterms will blow away campaign spending records, The Week (Feb. 12, 2014), https://theweek.com/articles/451111/2014-midterms-blow-away-campaign-spending-records [https://perma.cc/8G4W-F6YE].
[10] See generally Thomas Mann & Norman Ornstein, It’s Even Worse than It Looks (2012).
[11] Norman Ornstein, Worst. Congress. Ever., Foreign Pol’y (July 19, 2011), https://foreignpolicy.com/2011/07/19/worst-congress-ever/ [https://perma.cc/498K-DHL7].
[12] Drew Desilver, Pew Research Ctr., The polarized Congress of today has its roots in the 1970s (June 12, 2014), http://www.pewresearch.org/fact-tank/2014/06/12/polarized-politics-in-congress-began-in-the-1970s-and-has-been-getting-worse-ever-since/ [https://perma.cc/9N7P-KWVU].
[13] Pew Research Ctr., Partisan Polarization Surges in Bush, Obama Years (June 4, 2012), http://www.people-press.org/2012/06/04/partisan-polarization-surges-in-bush-obama-years/ [https://perma.cc/CKL8-4DVL].
[14] Pew Research Ctr., Political Polarization in the American Public (June 12, 2014), http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/ [https://perma.cc/S8MJ-37EC].
[15] House Resolution Continues Last Year’s Spending, Mostly, Comm. for a Responsible Fed. Budget (Sept. 17, 2014), http://www.crfb.org/blogs/house-resolution-continues-last-year%e2%80%99s-spending-mostly [https://perma.cc/SM82-F4JP].
[16] Chris Cillizza, Why Congress is so partisan—in 2 charts, Wash. Post: The Fix (Dec. 12, 2012), https://www.washingtonpost.com/news/the-fix/wp/2012/12/12/why-congress-is-so-partisan-in-2-charts/ [https://perma.cc/26V4-M8RS].
[17] Olympia Snowe, Why I’m leaving the Senate, Wash. Post (Mar. 1, 2012), https://www.washingtonpost.com/opinions/olympia-snowe-why-im-leaving-the-senate/2012/03/01/gIQApGYZlR_story.html [https://perma.cc/H4QP-RE2W] (“Before the 1994 election, 34 senators came from states that voted for a presidential nominee of the opposing party. That number has dropped to just 25 senators in 2012. The result is that there is no practical incentive for 75 percent of the senators to work across party lines.”).
[18] Americans Across Party Lines Oppose Common Gerrymandering Practices, Harris Interactive (Nov. 7, 2013), https://www.prnewswire.com/news-releases/americans-across-party-lines-oppose-common-gerrymandering-practices-230953121.html [https://perma.cc/Q4KY-QCQC].
[19] Marc Caputo, Kathleen McGrory & Michael Van Sickler, Emails show GOP consultants’ ‘almost paranoid’ mission to circumvent Fla.’s gerrymandering ban, Miami Herald (Nov. 23, 2014), https://www.miamiherald.com/news/politics-government/article4077044.html [https://perma.cc/7GLE-733K].
[20] Christopher Ingraham, How gerrymandered is your Congressional district?, Wash. Post (May 15, 2014), https://www.washingtonpost.com/wp-srv/special/politics/gerrymandering/ [https://perma.cc/28A5-2L7Z].
[21] Norman Ornstein, The Pernicious Effects of Gerrymandering, Nat’l J. (Dec. 3, 2014), https://www.nationaljournal.com/s/34715 [https://perma.cc/KXS5-UX2B].
[22] Christopher Ingraham, This computer programmer solved gerrymandering in his spare time, Wash. Post (June 3, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/06/03/this-computer-programmer-solved-gerrymandering-in-his-spare-time/ [https://perma.cc/37GX-JNBJ].
[23] John Slides, Gerrymandering is not what’s wrong with American politics, Wash. Post (Feb. 3, 2013), https://www.washingtonpost.com/news/wonk/wp/2013/02/03/gerrymandering-is-not-whats-wrong-with-american-politics/ [https://perma.cc/SCM2-2N2C].
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