Narrow majorities

Mon Jun 13 11:50:20 PDT 2005

I think Michael is right, that the most powerful effect of gerrymandering -- or district line-drawing, if you don't like the pejorative -- is incumbency protection, not partisan protection (except for the fact that the state majority protects its party's
incumbents).  The fight for the "middle" in congressional elections is thus a fight for the dwindling number of contested and contestable seats.  But, of course, what makes a seat most contestable is especially a strong opposition candidate.
Richard Dougherty

"Michael Froomkin - U.Miami School of Law" wrote:

> I wonder if our recent experience of mid-decade redistricting in Texas,
> tends to support or undermine your confidence in the effectiveness of
> these political constraints?  It certainly didn't do much for mine.  (The
> legal constraints, as we know, proved utterly unavailing.)
>
> That said, other than timing restrictions, finding a reliably and visibly
> non-partisan way to draw lines seems like a moderately hard problem;
> finding a way to get state legislatures to adopt such a method seems even
> harder....
>
> I am, however, concerned about the entrenchment effects of partisan
> gerrymanders (whatever the party).  At what point does this rise to a
> constitutional problem?  I submit that current doctrine may set the bar
> too high.
>
> On Mon, 13 Jun 2005, Volokh, Eugene wrote:
>
> >       Well, I don't like gerrymanders, whether done by Democrats or
> > Republicans.  But my sense is that for all their flaws, partisan
> > gerrymanders face substantial political constraints, especially when the
> > vote is close.  Perhaps the political scientists on the list can speak
> > to that, if we're off in this direction.
> >
> >       Eugene
> >
> >> -----Original Message-----
> >> From: Michael Froomkin - U.Miami School of Law
> >> [mailto:froomkin at law.miami.edu]
> >> Sent: Monday, June 13, 2005 9:59 AM
> >> To: Volokh, Eugene
> >> Cc: conlawprof at lists.ucla.edu
> >> Subject: Re: Narrow majorities
> >>
> >>
> >> I wonder if the flaw in this argument might not be that it assumes a
> >> commitment to a strong form of process virtues (or the existence of a
> >> strong form of external policing of them).  If that is
> >> absent, all bets
> >> are off.  Thus, for example, a narrow majority might have a
> >> much greater
> >> incentive to gerrymander than a broad one.
> >>
> >> (I write, after all, from Florida, the classic 50/50 state --
> >> one whose
> >> state legislature and congressional delegation are anything
> >> but 50/50, and
> >> whose district shapes are true works of modern art.)
> >>
> >> Ditto, the "K Street project" and other devices designed to
> >> reward or buy
> >> loyalty with federal funds.  All governments do this to a degree, but
> >> might the incentive to do it be greatest when one feels one's
> >> majority
> >> is most tenuous?
> >>
> >> On Mon, 13 Jun 2005, Volokh, Eugene wrote:
> >>
> >>>    I should think that governments based on narrow majorities are
> >>> *less* dangerous than ones based on broad majorities.  A narrow
> >>> majority realizes that if it alienates even a fairly small
> >> segment of
> >>> the middle, its 51-48 victory last year can easily turn
> >> into a defeat
> >>> in a few years
> >>> -- or that it can return from its current modest majority
> >> in the Senate
> >>> to the narrow minority it held just a few years before.
> >> This provides a
> >>> natural check to its ambitions; it can lead to a
> >> self-check, with the
> >>> narrow majority in fact implementing relatively few
> >> aggressive measures
> >>> on which the majority is narrow -- or, if the self-check
> >> fails, they'll
> >>> receive a check soon enough at the voting booth.
> >>>
> >>>    Republicans also do represent a pretty broad coalition:  At the
> >>> very least, libertarians, traditional country club
> >> conservatives, and
> >>> the Religious Right are in the core; and of course to count
> >> up to 51%,
> >>> they have to represent a significant chunk of the middle, too (for
> >>> instance, hawks who care more about military and foreign matters
> >>> today, and trust the Republicans more today, than they do
> >> about social
> >>> and economic matters).  And as to the hard right and
> >> Clinton, I seem
> >>> to recall little affection from Reagan from even the moderate left,
> >>> much less than the hard left, from the very outset.
> >>>
> >>>    Eugene
> >>>
> >>> -----Original Message-----
> >>> From: conlawprof-bounces at lists.ucla.edu
> >>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas
> >>> Laycock
> >>> Sent: Sunday, June 12, 2005 9:58 AM
> >>> To: conlawprof at lists.ucla.edu
> >>> Subject: RE: Iraqi and American democracy
> >>>
> >>>
> >>>
> >>> The differences between Iraq and the US that Eugene points
> >> to make the
> >>> failure of consensus in Iraq far more dangerous than in the US, and
> >>> that is a difference in kind, not just in degree.  But
> >> Sandy's basic
> >>> point remains.  While urging consensus in Iraq, the current
> >>> administration practices a radically different policy here.  We are
> >>> far more likely to survive it than Iraq, but that does not
> >> change the
> >>> current nature of governance.
> >>>
> >>> The administration is leveraging a very narrow majority into total
> >>> control of all three branches, and in the case of the judiciary,
> >>> attempting to do so for a generation, not just til the next
> >> election.
> >>> And with some important exceptions (Medicare drug benefit most
> >>> obviously, the pulled-punches brief in Grutter, there are other
> >>> examples), it is governing not from the position of its
> >> marginal voter
> >>> or its average voter, but from the positions of its hard
> >> core base.
> >>> It has much broader support on its war and civil liberties policies
> >>> than Sandy would like to believe, and on some of the culture war
> >>> issues, but on other issues (tax and economic policy run
> >> for the rich,
> >>> stem cell research), it is leveraging the views of a minority into
> >>> national policy.
> >>>
> >>> This approach to governance by a narrow majority is supposed to be
> >>> very difficult under separation of powers and bicameralism.
> >>  I am not
> >>> trained as a political scientist, but the following
> >> observations seem
> >>> apparent. In most of the period that Eugene reviews (from
> >> the late 20s
> >>> forward), both parties represented broad coalitions and party
> >>> discipline was rare. Party line votes were not nearly so common as
> >>> they are today, and a narrow party majority was not enough
> >> to control
> >>> either house of Congress.  The Democrats dominated Congress
> >> for most
> >>> of that time, but the Southern Democrats and conservative
> >> Republicans
> >>> made a conservative majority more often than not.  Neither side
> >>> refused to talk to lobbyists or interest groups who contributed to
> >>> both sides.  Compromise was possible because a significant
> >> number of
> >>> Congressional votes were in play.
> >>>
> >>> In the brief periods when Democrats were able to push
> >> through most of
> >>> what they wanted (1932-36, 1964-66), they held the White House and
> >>> overwhelming majorities in both houses.  Liberal Democrats never
> >>> successfully imposed an agenda with a narrow majority.  I
> >> don't doubt
> >>> they would have done it if they could, but without party
> >> discipline,
> >>> conditions did not permit it.
> >>>
> >>> There may be some analogy to the current situation in earlier
> >>> political periods that I don't know very well -- and it was
> >> worse in
> >>> 1860 -- but I think there has been nothing like it at least since
> >>> World War I.  And in that sense, Sandy is right.  The
> >> Administration
> >>> is urging the inclusion of minorities in Iraq while working
> >> vigorously
> >>> to exclude everyone it disagrees with, sometimes even
> >> majorities, at
> >>> home.
> >>>
> >>> As to riots in the streets, the closest we have come was the white
> >>> collar riot of Republican Congressional staffers seeking to
> >> stop the
> >>> counting of votes in Dade County.  Falling back a step from
> >> riots, the
> >>> hard right set about to delegitimate Clinton from day 1,
> >> before he had
> >>> done anything.  Rush Limbaugh started counting Days in Captivity on
> >>> January 20, 1993.  Democrats are bitter and unhappy, and they are
> >>> obstructing the Administration on some issues, but the
> >> right in recent
> >>> years has been less willing to be governed by the left or
> >> center than
> >>> the left has been to be governed by the right.  And of course, left
> >>> and right must be understood in terms of a massive
> >> political shift to
> >>> the right, so that left is not very left at all.
> >>>
> >>> The roots of this polarization are at least partly
> >> structural -- party
> >>> realignment squeezing out conservative Democrats and liberal
> >>> Republicans, computerized gerrymandering squeezing out competitive
> >>> districts and thus empowering motivated primary voters from each
> >>> party's base, perhaps political residential segregation that would
> >>> make it hard to draw competitive districts even if we
> >> tried, perhaps
> >>> simply the relatively even division, so that every vote is
> >> a big deal
> >>> for both sides.  The even division might change, but it is
> >> not clear
> >>> what would roll back any of these other factors.  So the
> >> future may be
> >>> very different from the relatively tolerant back-and-forth history
> >>> that Eugene points to.
> >>>
> >>>
> >>>
> >>
> >> --
> >> http://www.icannwatch.org   Personal Blog: http://www.discourse.net
> >> A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> >> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> >> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
> >>                           -->It's warm here.<--
> >>
> > _______________________________________________
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> >
>
> --
> http://www.icannwatch.org   Personal Blog: http://www.discourse.net
> A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
>                           -->It's warm here.<--
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.