Partisan Gerrymandering and the Constitution

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On October 3, 2017, the United States Supreme Court will hear arguments in the case of Gill v. Whitford. This case raises the question of whether gross partisan gerrymandering by the Wisconsin state legislature in creating state voting districts violates any provision of the U.S. Constitution. Partisan gerrymandering – intentionally drawing voting district lines to favor one party or the other – has seen a sharp increase since the redistricting that followed the 2010 census. Many observers believe that partisan gerrymandering is to blame for much of the gridlock in Congress and the state legislatures because highly partisan districts elect highly partisan representatives who have no political room to compromise. The old legal wisdom is that for every wrong there is a remedy, so you would expect that this case would be a slam-dunk for those challenging the Wisconsin redistricting in the Supreme Court. But you would be wrong.

Appendix AFirst, some basics. The constitutions of each state determine the number of state Senators and Delegates assigned to voting districts and the apportionment of the state’s population into those districts. In West Virginia the House of Delegates is composed of a fixed 100 members, each theoretically representing 1/100 of the state’s population. But instead of there being 100 districts, our legislature has created 67 districts some of which elect multiple Delegates. (Appendix A). All Delegates face re-election every two years.

There are two Senators from each of seventeen senatorial districts for a total of thirty four. According to the West Virginia Constitution, senatorial districts “shall be compact, formed of contiguous territory, bounded by county lines, and, as nearly as possible, equal in population, to be ascertained by the census of the United States.” (Appendix B). There is no such language relating to House districts. Senate terms are four years and elections are staggered so that a portion of senators faces re-election every two years.

Appendix BState legislatures also draw each state’s Congressional district boundaries, which must be revisited every ten years immediately after the census. West Virginia has had three Congressional districts for several decades, but their boundaries have changed slightly over time to reflect the shift in population to the Eastern Panhandle and Monongalia County. The U.S. Constitution and its Amendments determine who can vote in federal elections. But as for how districts are constituted, it merely says that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective numbers” and that “the number of Representatives shall not exceed one for every thirty Thousand.”

The basic requirement of Congressional apportionment that each district have an approximately equal population is consistent with the 5th Amendment’s promise of equal protection of the law. For example, if District A has a population of 750,000 and District B has a population of 800,000, then voters in B have an incrementally less powerful vote. That same principle was made applicable to the states by the 14th Amendment, ratified after the Civil War. In a series of cases in the 1960s, the Supreme Court announced that “equal protection” in the context of state legislative district apportionment meant “one person, one vote.” For example, in Reynolds v. Sims (1964), the Court said:

To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. . . . By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.

But if all equal protection requires is districts of equal population, there is still an infinite number of ways to divide a state’s population into roughly equal segments. The development of software that predicts the likely election consequences of moving even small groups of voters from one district to another has tempted legislatures to find just those configurations that maximize the likely future success of the party in power, while still satisfying the equal population requirement. The Republican legislators in Wisconsin sorted through multiple proposed district maps with the use of redistricting software and the help of political science experts until they found the one they believed would best ensure their control of the legislature for an entire decade even if they were to lose the popular state-wide vote.

The challengers to this plan in Wisconsin were numerous individuals and groups acting on behalf of Democrat voters in the state. There is a subtle but significant difference between protecting an individual voter from the dilution of her vote and protecting a subset of the whole voting population – registered Democrats – from being deprived of a proportionately equal chance to elect Democrat candidates. This difference raises the question of whether the Equal Protection Clause even applies to state-wide voter groups? If it does, are all such groups entitled to equal protection? If Democrats and Republicans as distinct voter groups are entitled to equal protection, how about the Green Party or the American Nazi Party? This is one thing that makes the issues raised in the Wisconsin case so difficult for courts to get their minds around.

There is even a more fundamental legal question the Court must answer before deciding whether the Equal Protection Clause prevents partisan gerrymandering. That question is “justiciability” – whether a clear rule can be found delineating what is acceptable from unacceptable in the drawing of district boundaries and whether courts should step into the political arena at all in view of the separation of powers. In my next post, I will explain why partisan gerrymandering greatly intensified after the Supreme Court’s last pronouncement on these issues in 2010, and where the law now stands on the issues presented in the Wisconsin case.

 

Congressman Alex Mooney Fails Economics

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President Trump recently cut a deal with Democrats to raise the debt ceiling and fund the government for three months. Republican leadership had wanted a deal to fund the government for eighteen months so they would not have to revisit the issue before the 2018 mid-term elections. When the components of this deal reached the House for a vote, 90 Republicans voted against raising the debt ceiling, including Rep. Alex Mooney (WV 2d). Mooney issued a statement, saying “I voted against raising the debt limit because our national debt is already too high. West Virginian families have to balance their budgets each month and the federal government should do the same.” Really? Balance the federal budget each month? This statement shows that Mooney misunderstands the issues of public debt and deficit spending, or assumes that his constituents do. It is probably both.

The differences between the federal budget and a household budget are quite substantial. Generally, the spending side of a household budget is limited by the income of the wage earners in the family. If a household routinely spends more than this income, there will be trouble. But governments cannot be limited like this. Instead, they must respond to spending requirements that are unrelated to projected tax revenues for the year. Take, for example, the extraordinary spending needed to finance WW II. And, while a household buys consumables like clothing and restaurant dinners, government buys capital assets like roads, bridges and hospitals that benefit us for decades. When you consider the income side of budgets, governments have the power to raise new revenues through higher taxes and can actually print new money. Households have no such power. This wealth-creation power is what enables governments to borrow at much lower rates than households can.

When a government spends more than it brings in during a particular year, it has a deficit. In 2016, 44 of the top 50 world governments by budget size ran a deficit. The sum of all past deficits is the national debt. The national debt of a particular country can be compared with that of other countries, not by comparing the absolute amounts, but by comparing the ratio of debt to gross domestic product — the value of all goods and services produced during the year. Measured this way, by far the largest debtor nation is Japan. Its debt is over 2.5 times its GDP. The United States is 7th among developed nations. Our “national debt” is slightly higher than our GDP. But this is somewhat misleading because this “national debt” includes the debts of all states and localities as well as the federal debt. Considering only the federal debt, which is what Mooney was talking about, our debt to GDP ratio would be much lower.

Our national debt spikes during historical crises and then subsides as the economy is able to absorb the effects of the debt. According to the analysis of the St. Louis Federal Reserve Bank, our national debt to GDP ratio is now high because of the Great Recession that began in 2008. The federal debt increased largely because falling incomes led to lower tax receipts. Also, unemployment and poverty rose, which increased the cost of social insurance programs such as Medicaid and unemployment insurance. Following the recession, a number of factors, including the implementation of the $840 billion American Recovery and Reinvestment Act, caused the debt-to-GDP ratio to increase at a rapid pace.

An excessively high national debt is not a good thing. High public debt reduces the flexibility the government has during a recession to prop up the economy through increases in spending and tax cuts. And many economists believe that high public debt reduces the long-term growth potential of an economy. This is for two reasons. First, higher debt requires higher debt service, preempting a more productive governmental use of that money. Second, the increased sale of government bonds will absorb more of the available private investment funds, making them unavailable for corporate borrowing. Corporations borrow to invest in capital equipment, and other things that grow the economy.

But Mooney claims that our national debt is too high. Too high by what standard? The primary concern for holders of government debt is that the government will default. Excessive debt makes the risk of default higher. Measured by the reaction of U.S. debt holders, our debt is not “too high.” For that matter, neither is the debt of Japan, over twice as high as ours as measured against GDP. The debt paper of these two countries continues to be viewed as a safe haven in times of market turmoil.

Most Republican discourse about excessive debt ignores one other important fact about the U.S. national debt. Seventeen percent of the federal debt is held by the Federal Reserve Banks and other intergovernmental authorities. The interest paid on those debt instruments is ultimately returned to the Treasury.

Conservative politicians like Congressman Mooney are fond of attacking spending on social programs by arguing that this only increases our debt and that we are leaving a financial mess for our children to clean up. This argument is bogus. For the most part, we owe our national debt to ourselves. In his recent book What We Owe, IMF official Carlo Cottarelli points out that approximately 70% of the U.S. national debt is held by residents of the United States. These U.S. residents have lent money to the government. In the future, everyone will be taxed for the purpose of repaying the children of today’s Americans who have lent the money. All this money — the money spent by the government that was lent and the money that will repay these debts — has or will circulate in the U.S. economy.

While we should keep an eye on the level of our national debt, it is not now “too high” by any objective measure. The key to reducing debt is increasing the rate of economic growth in this country. If our rate of growth could once again reach 3% per year, nobody would be talking about the national debt. That is why the upcoming debate on tax reform is where the focus of Congress should be. Tax reform — not big tax cuts for the rich — has more potential for generating economic growth than anything else on the table.

Jeff Flake’s Conservative Conscience

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Jeff Flake is the junior United States Senator from Arizona. He graduated from Brigham Young University with a degree in International Relations and spent time as a missionary in South Africa. Later he served as the Executive Director of the Goldwater Institute, a conservative think tank, and was elected to the House of Representatives six times beginning in 2000 before his run for the Senate. Flake is very conservative, believing that government’s involvement in the lives of individual citizens should be minimized and that strangling tax revenues and spending is the best way to ensure this. He is pro-life, opposed to gun control and voted against disaster relief spending for victims of Hurricanes Katrina and Sandy. So one would not expect Jeff Flake to be openly critical of a Republican President whose election in 2016 made this conservative nirvana more likely. But Jeff Flake is a man of principle and he has unloaded on Donald Trump.

Flake’s opposition to Trump began during the 2016 Presidential campaign. Although he does not acknowledge a vote for Hilary Clinton, Flake openly admits he did not vote for Trump. He then opposed Trump’s travel ban, declaring that it was unacceptable when even lawful permanent residents could be stopped at the border.

Flake is up for reelection in 2018, so he has recognized that his maverick positions require some explaining. He has attempted to do this in a book recently published entitled Conscience of a Conservative, a title he borrowed from Barry Goldwater’s famous manifesto.

Flake’s opening salvo in the book is a description of the “madman” strategy employed by Richard Nixon to make Ho Chi Minh believe that we might actually drop a nuclear bomb on North Vietnam. In a breathtaking observation about Trump, Flake says “there is a significant difference between appearing to have problems with impulse control and actually having impulse-control problems.” Flake does not let up from there.

Perhaps most destructive of all, we haven’t ever had an occupant of the White House who so routinely calls true reports that irk him “fake news” while giving his seal of approval to fake reports that happen to support his position. This is tremendously damaging . . . Only in anti-democratic propaganda states do we see “alternative facts” successfully compete with the truth for primacy.

Flake not only takes aim at Trump, he is also critical of the partisan gridlock in Congress and the behavior of his own party. He says that the “impulse to dehumanize, to ascribe the worst possible motives to people who in normal times would be regarded not as ‘the enemy’ but merely as political opponents, is a signal that something is terribly wrong.” This applies, of course, not only to Republicans but to all of us these days. In a chapter entitled “Country Before Party” he speculates that Lincoln, Teddy Roosevelt and Ronald Reagan might not be welcome in the Republican Party of today because they were pragmatic and willing to compromise to achieve important national goals. In a particularly powerful passage he argues that

populist resentments may feel good in the moment, but indulging them is destructive, and self-destructive, and offers no solutions to the very real problems that gave rise to the resentments in the first place. Manipulating populist resentments is the oldest trick in the book, and it is shameful. When we allow ourselves to prioritize winning at all costs over what is best for our country . . . then we have chosen our political interests over the public interest and in so doing we inflict great harm on the country.

This is certainly refreshing and welcome. But it will not endear Flake to the harder right elements in his own Party. He now has a challenger in the upcoming Arizona Republican primary, who called his refusal to support Trump “treacherous” and describes Flake’s policies as “America Last.” Trump won in Arizona over Clinton by only 49% to 45% — a far smaller margin than in West Virginia and the narrowest win for a Republican since 1996. So Flake will have both a vigorous Democratic opponent and his hard right challenger to consider. On top of this, his popularity rating in Arizona last fall was only 35%. All this has led The Atlantic magazine to wonder whether Jeff Flake is “too nice” for the Senate, noting that he sometimes seems as if “he has just crash-landed here in a time machine from some bygone era of seersucker suits and polite disagreements.”

It is hard for a progressive to wish a man like Flake political success. His views on most things are somewhat extreme, as befits his libertarian outlook. But on closer inspection he can’t be so easily dismissed. Indeed, he may be an example of a middle course like the one Joe Manchin has attempted to take. For example, Flake is a globalist, believing that we all prosper through international trade agreements and calling for a renegotiation of NAFTA instead of a complete rejection of the treaty. He also flatly rejects Trump’s populist anti-immigrant stance and supported an end to the Cuban Trade Embargo.

Whatever can be said about Jeff Flake’s political views, it is plain he is driven by principle. It is hard to say the same about Joe Manchin. The best that can be said about Manchin’s behavior in the Senate is that he consistently votes in a way he thinks will help West Virginians. But his judgments on this are sometimes debatable, such as with his unflagging support for the coal industry. On matters affecting the nation more than the state, Manchin’s only “principle” is political survival. One can’t help wish for a West Virginia Senator who is willing openly to stand for country over party, for respect of the opponent even during disagreement, and for basic decency despite the political risk. Maybe this is the true middle course that, in the end, will be rewarded by voters.