Part Two of AMERICA AS A ONE-PARTY STATE:
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II. A Permanent Legislative Majority
It may feel like an eternity, but wall-to-wall one-party government has been in place only since Republicans took control of the Senate briefly during 2001 -- they lost it when Vermont Senator Jim Jeffords quit the party that May -- and again since January 2003. During Bill Clinton's first term, Democrats nominally controlled Congress, though with weak discipline. Clinton himself practiced bipartisan "triangulation," which further weakened the Democrats. Bush's presidency, by contrast, has produced a near parliamentary government, based on intense party discipline both within Congress and between Congress and the White House. It helps that Senate Majority Leader Bill Frist literally owes his job to Karl Rove.
In one sense, parliamentary discipline is good for democracy: It enables voters to hold the party of government accountable. If they don't like the results, they can throw the rascals out. But today, it has become far more difficult to oust the congressional in-party. One big reason is the vanishing swing district.
If the current abuse of parliamentary processes were operating in ordinary times, the opposition party would soon be returned to power and a cycle of reform would ensue. The 1903-11 dictatorship of the aforementioned Joe Cannon abruptly ended when widespread outrage produced an alliance between Democrats and Progressive Republicans to weaken the speaker's powers in 1910, and then a landslide repudiation that November in which Republicans lost 57 seats and Democrats took control for the first time since 1895.
But since the early 1980s, the number of contestable House seats has come down and down. It's not that voter preferences have become more stable; there are actually more registered independent voters than ever. Rather, in state legislatures both parties have worked to create unprecedented numbers of safe congressional seats. Sometimes the two parties have cut deals, redrawing district lines to make Republican House seats more Republican and Democratic ones more Democratic. In other cases, a state party with a legislative majority -- Republicans in Texas today, Democrats in California in 1981 -- will redraw district lines that create the maximum number of safe seats for their party. Both courses are profoundly undemocratic because each leaves most members with little to fear from voters and reinforces the underlying pro-incumbent bias of Congress.
Both parties are partly to blame, but as the recent super-gerrymandering caper in Texas illustrates, Republicans have played dirtier. Historically, districts are redrawn only after each decennial census. The unprecedented gerrymandering between censuses, carried out by the Texas legislature but orchestrated by Rove and DeLay, will likely shift seven seats from Democrats to Republicans. (The press paid far more attention to the jollity of Texas Democratic state representatives fleeing to Oklahoma and New Mexico to temporarily deny Republican legislators a quorum than to the deadly serious consequences when Republicans eventually prevailed.) A three-judge federal appeals court panel has upheld this caper, which will eventually come before the same Supreme Court that wrote Bush v. Gore.
Many Democrats thought themselves clever to collude in the safe-seat game. But this particular bout of musical chairs has ended with a nearly frozen House that is structurally tilted Republican. In combination with the DeLay parliamentary dictatorship, the consequence is a near permanent partisan lock. So today's Republican Party is more disciplined and accountable to party leaders but far less accountable to voters.
Here are the numbers: With 229 Republicans and 205 Democrats (counting Sanders), it would take a net Democratic pickup of just 13 seats (that's 13 Democratic gains equaling 13 Republican losses for a net swing of 26 seats) for the House to change control. Historically, that's a small swing. In the nine elections between 1968 and 1984, the median swing was 42 seats. In the nine elections since 1986, the opposition party enjoyed a swing of 26 or more only once (the Gingrich landslide of 1994), and the median swing was just 10 seats. So normally the current Republican majority would be vulnerable to a below-average election-year swing. Today, however, with only about 25 effectively contestable seats, Democrats would have to win about three-quarters of the contestable races to take control, i.e., 19 Democratic wins to just six Republican wins, which in turn would require a tidal shift of public opinion.
All told, there are as many as 60 swing seats. But many potentially competitive seats become contestable only after the current incumbent retires or dies. Conversely, swing seats often become safe seats once an incumbent is re-elected and entrenched. Because not all incumbents retire at once, at any given time the number of effective contestable seats does not exceed about 25.
Note also the interplay between the legislative dictatorship and the dwindling number of swing districts. In previous eras, a majority leader with a margin of just 26 seats would have to carefully broker compromises both with his own moderates and with the opposition party. But the DeLay dictatorship and the ever fewer swing districts have combined to produce the opposite result. Individual legislators with safe seats needn't worry about swing voters, and DeLay needn't worry about losing swing districts because so few are left. Accordingly, the congressional Republican Party has become more militantly conservative. Like Bush, who also had no real mandate for radical change, DeLay is governing as if his party had won by a landslide. The country may be narrowly divided, but precious few citizens can make their votes for Congress count. A slender majority, defying gravity (and democracy), is producing not moderation but a shift to the extremes.
Here again the senate is a variation on the theme, but with the same essential consequence: long-term one-party control. Senators are of course elected statewide. By definition, there is no gerrymandering of the Senate. (The republic's Founders achieved that in advance by giving big states and small ones the same number of senators.) But for a variety of other reasons, Democrats are unlikely to retake the Senate anytime soon.
One reason is the increasingly solid Republican South, something that New Democrats hoped their centrist formula could stave off. In the 1980s and early '90s, several southern Democrats did get elected as pro-development, pro-defense, racial moderates. But this trend has now collapsed [see Kevin Phillips, "All Eyes on Dixie," page 24]. Lately, Democrats have lost Senate seats they held in Georgia, Tennessee and Virginia. In 2004 they will very likely lose seats held by retiring incumbents in North Carolina, South Carolina and Georgia, and could also lose closer races in Louisiana and Florida. Democrats do have a couple of pickup opportunities elsewhere. But the likely southern losses make it almost a statistical impossibility for Democrats to take back the Senate in 2004. These losses are not the result of any direct Republican assaults on democracy per se, though holding down black southern turnout could be considered a kind of assault. But the consequences of such losses will reinforce one-party government.
III. Thumbs on the Electoral Scale
In the aftermath of the Republican theft of Florida's electoral votes and the 2000 presidential election, Congress passed the Help America Vote Act. Many states are using HAVA funds to shift from now-prohibited punch cards or old-fashioned voting machine systems to ATM-type computer terminals. However, the three biggest makers of such computerized voting systems have financial ties to the Republican Party, and there is already evidence that the biggest manufacturer, Diebold, has had trouble designing tamper-proof systems. Some Democrats, led by Rep. Rush Holt of New Jersey, have proposed that all such machines be backed up by "verifiable paper trails," but this suggestion has gotten almost no Republican support. Moreover, millions of the poorest Americans have no experience with ATMs, and could well be deterred from voting.
A second potential for mischief is the provision put into HAVA, at Republican insistence, requiring voters who register by mail to show a government ID at the polls. This sounds innocent enough. Republicans, however, have a long and sordid history of "ballot security" programs intended to intimidate minority voters by threatening them with criminal prosecution if their papers are not technically in order. Chief Justice William Rehnquist got his political start running a ballot-security program for the Republicans in the 1962 elections in Arizona. Many civil-rights groups see the new federal ID provision of HAVA as an invitation to more such harassment. The Department of Justice's rights division was once a bulwark against these tactics, but that division currently reports to an attorney general named John Ashcroft.
The latest semi-reform of our system of money and politics could also backfire. The Supreme Court recently upheld the McCain-Feingold law, which prohibits unlimited donations to political parties. Democrats have taken comfort from the ability of Howard Dean to raise large sums of small money, while major liberal donors like George Soros can donate vast funds to voter-registration, get-out-the-vote and issue-advocacy organizations. But McCain-Feingold also dramatically raised the ceiling on permissible hard-money donations and allowed unlimited sums for independent groups and state parties. The Democrats have one George Soros; the Republicans have dozens, and many thousands more donors capable of reaching the new $2,000 hard-money ceiling than the Democrats have.
Money also goes disproportionately to incumbents. For a generation Democrats offset Republican financial dominance by inviting wealthy donors to invest in their incumbency. When they didn't have Congress, Democrats had the presidency, and vice versa. No more. Now the Republicans can combine their natural financial dominance with wall-to-wall incumbency. This financial superiority further helps cement the Republican lock on Congress by dissuading challenges and also discourages potentially strong Democratic candidates from running.
When you add it all up, there is still far more conservative money than progressive money. The fewer the firewalls between big money and the electoral process, the more systematic advantage the right has in maintaining a permanent lock.
IV. Rubber-Stamp Courts
Recently, several close court decisions have defended democracy and due process. In December, a federal appeals panel in New York ruled that President Bush lacked the authority to define an American citizen arrested in the United States as an "enemy combatant" and to deny him or her due process. Another appeals court, in San Francisco, held that the indefinite imprisonment of 660 noncitizens at Guantanamo Bay, Cuba, violated both the U.S. Constitution and international law. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit blocked, at least temporarily, the Bush administration's efforts to gut major portions of the Clean Air Act by administrative fiat.
However, if George W. Bush is re-elected, a Republican president will have controlled judicial appointments for 20 of the 28 years from 1981 to 2008. And Bush, in contrast to both his father and Clinton, is appointing increasingly extremist judges. By the end of a second term, he would likely have appointed at least three more Supreme Court justices in the mold of Antonin Scalia and Clarence Thomas, and locked in militantly conservative majorities in every federal appellate circuit.
How would such a Supreme Court change American democracy? We already know from Bush v. Gore that even the current high court is a partisan rubber stamp for contested elections. A Scalia-Thomas court would narrow rights and liberties, including the rights of criminal suspects, the right to vote, disability rights, and sexual privacy and reproductive choice. It would countenance an unprecedented expansion of police powers, and a reversal of the protection of the rights of women, gays and racial, religious and ethnic minorities. An analysis of Scalia's and Thomas' rulings and dissents suggests that a Scalia-Thomas majority would also overturn countless protections of the environment, workers and consumers, as well as weaken guarantees of the separation of church and state, privacy, and the right of states or Congress to regulate in the public interest. (For a full and thoroughly chilling account, see "Courting Disaster II: How a Scalia-Thomas Court Would Endanger Our Rights and Freedoms," People for the American Way, June 2003. The most predictable public-policy result of extended one-party rule would be the completion of the Bush/radical-right project: the dismantling of social investment, regulation, progressive taxation, separation of church and state, racial justice and trade unionism. The administration's opportunistic version of federalism would continue to preempt the ability of states and localities to enact progressive policies of their own.
Even more insidiously, the radical right would likely use its wall-to-wall control of government to reduce liberties, narrow electoral democracy and thereby minimize the risk that it would ever lose power. Republican one-party rule would also strategically target progressive habitats, changing laws that currently tolerate or incubate oases of progressive political power and build liberal coalitions, such as the labor movement, universal social insurance, and an effective and valued public sector.
Is this one-party scenario inevitable? For a variety of structural reasons noted above, Democrats are unlikely to take back Congress this decade, absent a national crisis or massive scandal that overwhelms the governing party. But, contrary to the views of some of my colleagues, I think a Democrat could well win the White House in 2004. The Democratic base is aroused in a fashion that it has not been in decades, and swing voters may yet have second thoughts about George W. Bush. It's not at all clear what the economy and the foreign-policy scene will look like next fall, or what scandals will ripen.
Democrats have also begun fighting back against legislative dictatorship, and this may yet become a public issue. When the Republican Senate leadership unveiled rules changes to make it effectively impossible for Democrats to block extremist judicial nominees with a filibuster, the Democratic leadership threatened to use parliamentary tactics to shut the place down. House Democrats are now almost as unified as their Republican counterparts, and, if anything, even angrier. Tom DeLay may be sowing a whirlwind. And if a variation of the 2000 Florida theft is attempted in 2004, it is inconceivable that Democratic leaders and activists would show the same docility that Al Gore displayed.
We've seen divided government before, with a Democratic president and a fiercely partisan Republican Congress. It is not pretty. But it is much more attractive than a one-party state.
Benjamin Franklin, leaving the Constitutional Convention in Philadelphia, was asked by a bystander what kind of government the Founders had bestowed. "A republic," he famously replied, "if you can keep it." There have been moments in American history when we kept our republic only by the slenderest of margins. This year is one of those times.
Robert Kuttner
prospect.org |
