Does Gerrymandering Cause Polarization?

Both pundits and scholars have blamed increasing levels of partisan conflict and polarization in Congress on the effects of partisan gerrymandering. We assess whether there is a strong causal relationship between congressional districting and polarization. We find very little evidence for such a link. First, we show that congressional polarization is primarily a function of the differences in how Democrats and Republicans represent the same districts rather than a function of which districts each party represents or the distribution of constituency preferences. Second, we conduct simulations to gauge the level of polarization under various "neutral" districting procedures. We find that the actual levels of polarization are not much higher than those produced by the simulations. We do find that gerrymandering has increased the Republican seat share in the House; however, this increase is not an important source of polarization.     

The Supreme Court Prohibits Gerrymandering: A Gain or a Loss for the States?

The 1986 Davis v. Bandemer decision of the U.S. Supreme Courtdeclared partisan gerrymandering to be justiciable, but overruledthe federal district court's judgment that the Indiana legislativeredistricting plan was unconstitutional. The Court split onthe question of justiciability, and those justices who favoredjusticiability disagreed on the appropriate tests to apply intesting a districting plan for unfair partisan gerrymandering.The Court did not specify a clear measure and standard for outlawinggerrymandering. This gives state districting authorities anddistrict courts little guidance in dealing with gerrymandering.If, however, a successful measure and standard are developed,this action is likely to be beneficial to the states.     

The Separation of Powers, Court Curbing, and Judicial Legitimacy

A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.     

State Taxation of Interstate Sales: Enforcement Problems and Prospects

In their search for additional revenues, state governments in recent years have turned greater attention to collection of use taxes. Growth in interstate mail order sales has vastly increased the potential yield from use taxes, but Supreme Court decisions have limited the ability of states to effectively collect the tax. States have attempted to overcome enforcement barriers by joining in interstate use tax compliance compacts, and promoting congressional legislation to overcome constitutional prohibitions.     

From Shaw v. Reno to Miller v. Johnson: Minority Representation and State Compliance with the Voting Rights Act

In 1994, four federal district courts applied the tests setforth in Shaw v. Reno in order to rule on the constitutionalityof congressional districting schemes that were comprised, inpart, of "majority-minority" districts. The difference of opinionthat arose among the lower courts indicated that Shaw had setforth unclear standards for determining (I) what role the federalcourts should play in monitoring state redistricting practices,and (2) whether a remedial redistricting plan is a racial gerrymander.Also, the disagreements exposed the weakness of some of theassumptions on which voting rights analysis is grounded. InMiller v. Johnson, the Supreme Court sought to address the lowercourts' concerns. Nonetheless, voting rights jurisprudence remainsunclear regarding (I) what constitutes a valid claim of vote-dilution,and (2) whether voting should be perceived as a group or individualright.     

State Sovereignty in the Federal System: Constitutional Protections Under the Tenth and Eleventh Amendments

The U.S. Supreme Court has held that state sovereignty is protectedby principles of common law rather than explicit constitutionalguarantees under the Tenth and Eleventh Amendments. The Courthas also cautioned that congressional actions, even under delegatedpowers, may not threaten the integrity of states as sovereignentities in the federal system. The National League of Citiesdecision in 1976 appeared to reverse this doctrine by implyingthe existence of Tenth Amendment protections of state actionsin traditional functional areas. However, the federal courtsdiscounted the NLC ruling as a compelling precedent in subsequentfederalism cases because of its vagueness and its fundamentalinconsistency with established doctrine. In 1985, the SupremeCourt overturned the ruling in Garcia v. San Antonio, reaffirmingthe common law nature of state sovereignty and arguing thatconstitutional protection of state interests lies primarilyin the representative structure of the federal system ratherthan in specific constitutional guarantees.     

Structural constraints on partisan bias under the efficient gerrymander

Partisan bias occurs when the translation of the popular vote into legislative seats differs between competing parties. This paper contains a theoretical and empirical analysis of the consequences of an efficient gerrymander for the partisan bias of an electoral system. Under partisan apportionment, bias is shown to depend on some structural features of the electoral environment; namely, the size of the voting population and the number of single-member districts within a political jurisdiction. A statistical analysis reveals the predicted relationships in data on Congressional elections across states in the 1950–1984 period. This paper highlights the importance of some measurable features of the electoral environment for determining bias and provides an indirect test of partisan gerrymandering in congressional apportionment processes.     

Abortion and Partisanship in the 104th U.S. Congress

The new Republican majorities in the 104th Congress conducted a coherent campaign to erode abortion rights. Avoiding a hopeless attempt to overturn the 1973 Roe v. Wade decision, congressional Republicans pressed numerous anti-abortion initiatives. Analysis of the votes on those initiatives reveals a clear partisan pattern – a large majority of congressional Republicans are hostile to abortion rights while most congressional Democrats usually act to protect and even extend them. Therefore, the liberal versus conservative conflict which characterises the congressional parties on economic issues is also visible in the abortion issue.     

How to gerrymander: A formal analysis

The paper combines the optimal gerrymandering approach in political science with the “fair cake division” results in mathematics and economics to consider optimal partisan gerrymandering schemes on a given territory. We analyze existence and properties of an optimal districting map for a strategic party that has control over redistricting process, given arbitrary continuous distributions of voters and party supporters over the electoral territory. Interestingly, we find that imposition of certain equality-type constraints on districting might often help to prevent gerrymandering and sustain fairness.     

The State of American Federalism, 1995-1996

Federalism was a major political issue in 1995 and 1996 withpresidential candidates, congressional leaders, governors, andthe courts weighing in with proposals to shift responsibilityfrom Washington to states and localities. There was more talkthan action, but as the second session of the 104th Congresswound down in the late summer, a major proposal to block grantthe 61-year old Aid to Families with Dependent Children programwas enacted. This enactment allowed both Democrats and Republicansto take political credit, and gave major responsibilities tothe states to implement the new approach to a former entitlementprogram. Five themes characterized the year: (1) federalismwas once again a salient issue; (2) deficit reduction and devolutionwere bound together; (3) the U.S. Supreme Court continued toreexamine and possibly redefine the legal parameters of federalism;(4) state officials became more visible political actors inWashington, D. C.; and (5) states provided key policy and managementleadership.     

Evaluating congressional reform: Deregulation revisited

An evaluation of the changes in Congress's structure that occurred in the 1970s requires attention to three dimensions of its performance as a policymaking institution: representation of interests, deliberation, and conflict resolution. Considered this way, the changes seem to have enhanced some aspects of congressional capacity (especially the representation of broadly-based interests) but to have diminished others (especially deliberation and conflict resolution on issues that are salient to mass constituencies). The resulting strengths and weaknesses help to explain differences in congressional performance on trucking deregulation and natural gas deregulation in the late 1970s and early 1980s. To some degree, they have altered the opportunities, strategic considerations, and central skills for policy analysts who seek to influence congressional decisions.     

The Dynamics of Partisan Conflict on Congressional Approval

Partisan divisions in American politics have been increasing since the 1970s following a period where scholars thought parties were in decline. This polarization is observed most frequently within the debates and deliberation across issues within Congress. Given that most studies of public opinion place the behavior of elites at the center of public attitudes, surprisingly little research examines the effect of partisan conflict on the mass public. This research examines quarterly congressional approval data from 1974 to 2000 to determine the consequences, if any, of party conflict on the dynamics of congressional approval. The findings indicate that over-time changes in partisan conflict within Congress have a direct and lasting effect on how citizens think about Congress.     

The State of American Federalism, 2005: Federalism Resurfaces in the Political Debate

After several years during which federalism was rarely a prominentor explicit issue in political debates, it was in several waysthrust into the public consciousness in 2005. It was not thatthe president or Congress ceased sacrificing state and localinterests to substantive policy goals, as shown by the costlyREAL ID Act, stringent new federal requirements in the TemporaryAid to Needy Families reauthorization, and congressional interventionin the Terri Schiavo case. However, Hurricane Katrina, and particularlythe delayed and ineffective intergovernmental response, generatedsubstantial debate about the appropriate federal role in disasterrelief. In addition, state and local governmental oppositionto the No Child Left Behind Act intensified and generated significantattention during the year, particularly as a result of a Utahstatute asserting the precedence of state over federal law anda Connecticut lawsuit against the act. Meanwhile, state governmentscontinued to address a number of policy problems that federalofficials were unable or unwilling to confront, especially regardingenvironmental, health-care, and labor issues. Finally, althoughthe Supreme Court in 2005 continued its recent (2003–2004)trend of pulling back somewhat from its late-1990s Congress-curbingdecisions, federalism issues figured quite prominently in thesenate confirmation hearings for Chief Justice John Robertsand Justice Samuel Alito.     

Who Preempted the Massachusetts Burma Law? Federalism and Political Accountability Under Global Trade Rules

With its "Burma law, " Massachusetts joined a procurement boycottof companies doing business in Burma. In Crosby v. NFTC, theU.S. Supreme Court held that Congress preempted the Massachusettslaw, even though Congress was silent on preemption. The Courtrelied on actions by executive-branch, foreign, and corporateactors to find that the state law was an obstacle to impliedobjectives of federal Burma sanctions. In doing so, the Courtdiffused congressional accountability for preemption and constrainedthe "constituent diplomacy" by which states and local governmentsuse their purchasing power to influence national policy andmultinational corporations. Crosby shifted the burden to Congressto express its intent not to preempt such measures. Congresshas several opportunities to meet this burden if it wants topreserve the diversity and balance that constituent diplomacybrings to the federal system.     

Congressional response to public crisis: how corporations can prepare

Public policy is at the heart of US congressional investigations, where private corporations can confront a unique set of rules and mores—in a very public forum, often covered in the news and televised. This article traces the historical precedents to congressional inquiries, highlighting cases such as the ‘Teapot Dome’ scandal and the ensuing US Supreme Court case, McGrain v. Daugherty, confirming the Legislative Branch's independent investigative authority to compel a witness to testify and produce documents. The article explains the two types of congressional investigations, oversight and legislative, and how their differences could impact the corporations involved. It reviews recent examples of investigations, illuminating how a corporation's public relations and legal rights can both overlap and point to differing interests. Based upon first‐hand experience, the author provides a legal perspective in explaining the investigation procedures, the legal limits to congressional authority, and the steps taken to prepare a witness for testimony. Finally, the author explains how readiness for congressional inquiries is an integral aspect of prudent risk management for any major corporation. Copyright © 2012 John Wiley & Sons, Ltd.     

Strategic institutional choice: Voters, states, and congressional term limits

States’ choices on term limits are quantified as a multiple-categorical variable capturing variation in the type of limits passed. Measures of relative political influence in Congress explain much of this variation. Using 1992 data on the American states, the model controls for unobserved heterogeneity due to voter access to direct democracy in some states. At 2002 values for congressional tenure and federal spending, the model predicts approximately eight to ten additional states would choose to limit their own members’ terms but cannot under a Supreme Court ruling. We discuss implications for institutional federalism and the potential passage of similar political institutions across the states.     

Federal Preemption of State Regulation of Insurance: End of a 200-Year Era?

This article examines state regulation of insurance, focusingon congressional and judicial attempts to displace state regulatoryprimacy over insurance. After describing the early period ofstate insurance regulation from the U.S. Supreme Court's decisionin Paul v. Virginia to the Court's overruling of that decision,the article examines the McCarran-Ferguson Act and the post-McCarranenvironment, including examples of judicial preemption of stateinsurance laws. Finally, the article considers the system ofinsurance regulation envisioned in H.R. 1290, the most recentcongressional attempt to displace state insurance regulation,and state initiatives to counter federal regulation. AlthoughH.R.1290 purports to setup a dual regulatory scheme, the broadpreemption language in the bill would allow federal regulatorsto preempt virtually all state insurance laws. Moreover, thedecisions of the Supreme Court in Garcia v. San Antonio MetropolitanTransit Authority and Chevron v. Natural Resources Defense Councilwould leave no political or judicial forum for states to debatethe extent and impact of federal preemption     

The Strange Story of Judge Robert Bork and a Vacancy on the United States Supreme Court

President Reagan's nomination of Judge Robert Bork to the Supreme Court was expected by most people to lead to confirmation. It did not. This article examines the special importance of the vacancy created by Justice Lewis Powell's retirement, the philosophical debate which the nomination generated, the political and strategic calculations of the actors involved (especially the unprecedented level and nature of interest group involvement) and the performance of Judge Bork himself during the congressional hearings. It posits a multi-causal explanation. The importance of the episode, however, lies less in what it tells us about the Supreme Court appointment process and more in what it tells us about the current unsatisfactory condition of executive-legislative relations in a political system predicated on the separation of powers.     

Judicial Decisions and Policy

This symposium debates the impact of High Court decisions by questioning whether the High Court has the constitutional and legislative authority (and possibly the moral right) to decide policy issues and determine the rights of citizens. Arguments on the role of the High Court vary from views that the High Court provides a sphere in which political interests may be lobbied to notions that its role is solely to interpret the Australian Constitution. However, what occurs when the political aspirations of government are in conflict with the decisions of the High Court? Should the High Court adapt judicial decisions to changing social views, or consider the implications of their decisions on the executive and legislature? What is the constitutional role of the High Court? These questions are explored in detail in the following articles.     

An Intellectual Crisis in American Federalism: The Meaning of Garcia

In National League of Cities v. Usery (1976), the U.S. SupremeCourt found that the Tenth Amendment requires the existenceof a set of essential state powers that remains beyond the reachof congressional regulation or preemption. The Court reverseditself in Garcia v. San Antonio Metropolitan Transit Authority(1985), holding that the Tenth Amendment provides the Courtno basis on which to limit the Congress in the exercise of itscommerce powers. We argue that, although contradictory, bothholdings can be inferred validly from the U.S. Constitution.This absurd result reveals profound inconsistencies in the constitutionaldesign of federalism, requiring a constitutional solution. Thearticle concludes with a discussion of a variety of constitutionalremedies, including constitutional amendments.