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Monday, July 30, 2012

Maryland Democrats "Provide" Weak Argument Against Redistricting Petition

The full text of the Maryland Democratic Party's legal challenge to the successful petition effort to place the state's egregiously gerrymandered congressional map has been filed and is available on-line.
The meat of the legal arguments appears in Section V starting at paragraph 31. The first argument is against the petition process as employed by MDPetitions.com - an innovative website that allows voters to download petitions with information from voter registration records already populated on the form. This is an important step because Maryland laws makes it very easy for the state Board of Elections to reject petitions over missing middle initials, missing zip codes, or other common errors.

The MDpetitions.com process minimizes the possibility of errors. That process is the primary bases for the Maryland Democratic Party's legal objection (text from the legal filing presented in red:

34. Md. Code Ann., Elec. Law Art. § 6-203(a) provides that, to sign a petition, "an individual shall," in addition to signing the individual's name, "include the following information, printed or typed, in the spaces provided: (i) the signer's name as it was signed; (ii) the signer's address; (iii) the date of signing; and (iv) other information required by regulations adopted by the State Board." The statute this makes clear that the individual signer must print in her name and address next to her signature.

35. That requirement is also set forth in the State Board's regulation, COMAR § 33.06.03.06(B), which provides that when signing the signature page, "each signer shall . .. (2) Provide the following information to be printed or typed in the appropriate spaces: (a) Date of signing, (b) Signer's name as it was signed, and (c) Current residence address, including house number, street name, apartment number (if applicable), town and ZIP code" (emphasis added).

36. On the "Pre-Filled Petition" forms generated by MdPetitionis.com, the signer has not, as required by section 6-203(a) "included" her printed name and address, nor has the signer "provided" that information as required by COMAR § 33.06.03.06(B). Rather, the information has been "included" and "provided" by a computer program created and operated by the petition sponsors, MDPetitions.com, through the Internet.

Essentially the Democrats' arguments comes down to the meaning of the word "provide." They argue that petition signers who used MDPetitions.com to download their petitions did not provide the necessary information - rather MDPetitions.com did. This is a poor argument and rests on a very specific and inappropriate understanding of the word "provide." The Democrats clearly argue that a petitioner can only provide the required information if they personally type or hand write it. But a full reading of Maryland election law concerning petitions makes rather clear that provide actually means - a petitioner must provide the needed information to the appropriate election authority and the information is to be contained in the petition document.

So, when a person goes to MDPetitions.com and enters their information and downloads a petition with much of their information already filled in they are simply taking the steps necessary to provide the proper election authority with the required information. By printing and signing the form the petitioner has provided the information.

In a subsequent paragraph, Democrats claim the MDPetitions.com process is equivalent to providing a pre-filled petition,

38. That such "Pre-Filled Petitions" violate the requirements of state law even as interpreted by the State Board itself is confirmed by the current version of the State Board's Petition Signature Gathering "Frequently Asked Questions," posted on the State Board's website during 20 II, which stated:

"Can a petition sponsor pre-print signatures pages with voters' names and addresses, so that if a voter agrees to sign the petition, the voters need only fill in his or her signature, date of birth, and date of signing?

No."

39. The current updated version of those Petition Signature Gathering "Frequently Asked Question," posted on the State Board's website as of the date hereof, similarly states:

"Can a petition sponsor use a 'walking list' containing all registered voters' names and addresses, so that if a voter agrees to sign the petition, the voter need only fill in his or her signature, date of birth and date of signing?

No."

The "Pre-Filled Petition" form constitutes precisely such a "walking list." If a voter wanted to sign the pre-filled petitions generated by MdPetitions.com, the voter would "need only fill in his or her signature, date of birth and date of signing."

Again, the Democratic Party's argument is a bit too narrow here. A petition downloaded from MDPetitions.com is not precisely the same as a "walking list" or a "pre-filled petition" as discussed on the State Board of Elections FAQ. MDPetitions.com does not pre-print signatures pages with voters' names and addresses. Rather the person downloading and signing the petition prints the form after accessing it using their voter registration information.

Likewise, MDPetitions.com does not provide a 'walking list' containing all registered voters' names and addresses, so that if a voter agrees to sign the petition, the voter need only fill in his or her signature, date of birth and date of signing? Again, the actual petition signator must access and download the form that they then sign and submit. In both the case of a walking list and pre-filled petition the signer is a passive participant at every stage accept signing the form. The MDPetitions.com process requires that the signer actively initiate the process - there is a clear difference.

Democrats then turn to the "fraud" argument:

40. There are sound policy reasons for requiring, as the statute and regulations clearly do, the  petition signer to fill in his or her own information on the form, rather than allowing that information to be filled in by someone else. Anyone-including someone other than the voter-using the MDPetitions.com website who knows the name, zip code and birth date of any Maryland voter could have the website generate a "Pre-Filled Petition Form" with that voter's information pre-printed, both in the signing block and the circulator's affidavit. The user (who is not the voter) could then print out the form, sign the voter's name in the signature space and in the circulator's affidavit and mail the form to MDPetitions.com for submission to the Secretary of State and State Board.

41. In the situation described in the preceding paragraph, there is absolutely no procedure or step in the statute, regulations or State Board practice that could detect the fraud. Nothing in the statute or regulations requires the local boards or State Board to check the signature of the person purportedly signing against the voter registration records, and it is the practice of the local boards and State Board not to do so.

The Democrats' argument here being that the MDPetitions.com has made petition fraud almost as easy as vote fraud - given that it would still be a bit easier to vote as someone else in Maryland than to download a petition pretending to be someone else.

In one of the most infuriating arguments put forth by the Maryland Democratic Party, they argue that no person may be a witness to her or his own signature.

44. Article XVI, section 4 of the Maryland Constitution provides that, "There shall be attached to each paper of signatures filed with a petition an affidavit of the person procuring those signatures that the signatures were affixed in his presence that, based upon the person's best knowledge and belief, every signature on the paper is genuine and bona fide .... "

45. Md. Code Ann., Elec. Law § 6-204(a) requires that "Each signature page shall contain an affidavit made and executed by the individual in whose presence all of the signatures on that page were affixed and who observed each of those signatures being affixed." Section 6204(b) provides that, "The affidavit shall contain the statements, required by regulation, designed to assure the validity of the signatures and the fairness of the petition process."

46. The State Board's regulations, COMAR § 33.06.03.08, provides that the circulator's affidavit "shall state that ... (3) The circulator personally observed each signer as the page was signed; and (4) To the best of the circulator's knowledge and belief, all (a) signatures on the petition are genuine, and (b) Signers are registered voters in the State."

47. The manifest purpose of the requirements set forth in Md. Constitution Art. XVI, § 4 and Md. Code Ann., Elec. Law §§ 6-204(a) and (b) is to help prevent fraud by having an individual witness persons signing the petition and having that individual-the circulator swear that the person who signed the petition actually tilled in her own information and signed her own name in the presence of the circulator. That purpose is utterly defeated by allowing a circulator to attest to his or her own signature.

48. Permitting a circulator to attest to his or her own signature is contrary to the plain language ofMd Const. Art. XVI, § 4 and Md. Code Ann., Elec. Law § 6-204(a) that the signature be affixed "in the presence of the" circulator and that the circulator "personally observe" each signer as the page was signed. No person can serve as a witness to his or her own actions.

49. Nevertheless, the State Board counted as valid a number of signatures of persons who attested to their own signature as the circulator. Those signatures are invalid as a matter of law.

So, according the Democrats' argument, you can only submit your signature on a petition if someone else was circulating the petition. According to them, if you were the sole signatore too bad. If you were the circulator and signed your own petition in addition to other voters - too bad - your signature should be tossed.

The actual section of state law reads (in purple):

§ 6-204. Circulators; affidavit of the circulator.

(a) In general. — Each signature page shall contain an affidavit made and executed by the individual in whose presence all of the signatures on that page were affixed and who observed each of those signatures being affixed.
(b) Requirements. — The affidavit shall contain the statements, required by regulation, designed to assure the validity of the signatures and the fairness of the petition process.
(c) Age of circulator. —A circulator must be at least 18 years old at the time any of the signatures covered by the affidavit are affixed. (An. Code 1957, art.33, § 6-204; 2002, ch. 291, §§ 2, 4.)

Nowhere does this indicate that a person cannot be witness to their own signature. In fact, Article XVI, Section 4 of the Maryland Constitution reads:

SEC. 4. A petition may consist of several papers, but each paper shall contain the full text, or an accurate summary approved by the Attorney General, of the Act or part of Act petitioned. There shall be attached to each paper of signatures filed with a petition an affidavit of the person procuring those signatures that the signatures were affixed in his presence and that, based upon the person's best knowledge and belief, every signature on the paper is genuine and bona fide and that the signers are registered voters at the address set opposite or below their names. The General Assembly shall prescribe by law the form of the petition, the manner for verifying its authenticity, and other administrative procedures which facilitate the petition process and which are not in conflict with this Article (amended by Chapter 548, Acts of 1976, ratified Nov. 2, 1976; Chapter 849, Acts of 1982, ratified Nov. 2, 1982).
Again, there is no suggestion that the person procuring the signatures cannot as well be a signator. To suggest that state law prohibits a person from being the sole signator on a petition is to deny the very right to petition as provided by the state Constitution.

Finally, in paragraphs 50-65 Democrats resort to the Sauerbrey argument. They argue based "On information and belief" - and one can assume it is more the latter than the former that the state Board of Elections improperly accepted as valid petitions where the signator's printed name and signature were not a perfect match or where there was a discrepancy with the signature matching the voter registration information. Also based "On information and belief" they argue some addresses were not provided in a matter consistent with state law. They further argue some contained dates that were not in the proper format and that some signatures were simply fraudulent. In paragraph 62 they simply declare some some signatures are null and void because they believe the same person signed for more than one person. Having made that declaration, they then make the logical next step - if indeed one person signed for two people then the circulator's affidavit of authenticity must be null and void as well, meaning every signature on the submitted petition should be tossed.

In 1994, Republican Ellen Sauerbrey lost the gubernatorial election to Parris Glendening by a scant 5,993 votes. Almost immediately Sauerbrey contended massive vote fraud - one assumes based "on information and belief." Sauerbrey acted as if she was the governor-elect even attending a meeting of the National Governors Association held weeks after the election. Her lawsuit and allegations of massive vote fraud went nowhere. Her refusal to accept the outcome of the election destroyed her reputation and made her a punchline in Maryland politics.

By law, the state Board of Elections is tasked with validating signatures on petitions for referenda. They check for correct addresses, correct dates, matching signatures. The Board of Elections determined that roughly 10% of the signatures submitted were invalid - but that  59,201 signatures were accepted by the board - roughly 4,000 more than the 55,736 needed to put the map on the ballot for a referendum. Maryland Democrats' are now claiming the Board of Elections did not do it's job.

In all, I find the arguments put forth by the Maryland Democratic Party to be very weak. That they had to resort to parsing the meaning of "provide" or claiming that a person could not be the sole signator on a petition is evidence of the weak case. The claims of fraud... well they sound like the same unsubstantiated fraud claims the GOP has used in other states to justify voter ID laws. One hopes a judge will simply dismiss the case. Either way, the legal challenge does great damage to the credibility of the Maryland Democratic Party. The congressional map at the center of the petition drive is itself an insult to the voters of the state. As argued by the editors of the Washington Post:

"The map, drafted under Mr. O’Malley’s watchful eye, mocks the idea that voting districts should be compact or easily navigable. The eight districts respect neither jurisdictional boundaries nor communities of interest. To protect incumbents and for partisan advantage, the map has been sliced, diced, shuffled and shattered, making districts resemble studies in cubism... Federal officials or the courts will ultimately judge whether Mr. O’Malley’s plan is illegal under the Voting Rights Act. The broader question is whether it promotes fair and rational democracy. Anyone looking at the map can answer that one."

Denied the right to fair representation under the map adopted by the General Assembly and signed by the governor voters exercised the only option they had to prevent the partisan power grab represented by the map - the right to petition. State Democrats now want to deny that right as well.

No one disputes that this kind of brazen partisan gerrymandering is employed by Republicans and Democrats. These maps undermine the concept of representative Democracy and do harm to the nation. Not all voters enjoy the same rights as do Marylanders to challenge the map via petition and referendum. If Marylanders stand up against this abuse of process and reject the map, it may be just the push needed to convince Congress to impose on all states a non-partisan process for redistricting.

One can only hope the Democratic Party's legal challenge is dismissed and that the people will be heard.


Thursday, July 26, 2012

The Greatest Advocates are the Ones We See Every Day

I received the news yesterday that a friend from my early college years had passed away after a lengthy battle with cancer. Out of respect for his friends and family and their need to to mourn, I'll simply refer to him as Tyler. I hadn't seen or spoken with Tyler in 20 years. It was only in the past year that even I learned of his illness, but when I heard of his death I began to think more about the profound impact he had on my life.

When I first met Tyler I was 19 years old and still living in the rural section of small town, southern Pennsylvania in which I was born. Like many, my world view at age 19 was formed very much by my surroundings - and my surroundings were not home to much diversity. I met Tyler through mutual friends while I was working at a record store (the MP3 was still nearly a decade away).

What I remember most about Tyler is that he was always happy. He just genuinely seemed to enjoy life. Shortly after meeting him I found out that he was gay. At that point in my life I had never been friends with anyone that I knew to be gay - that was not a conscious choice but rather a reality of small town life two decades ago. My initial reaction was, if I recall correctly, "yuck." Understand, at that point in my life my entire understanding of what it meant to be gay was based on stereotypes and a society that was not accepting of homosexuality.

But the initial discomfort passed quickly. I knew Tyler, I liked Tyler, Tyler was... normal. That he was gay quickly became a non-issue. During the time that I knew him, Tyler had a steady boyfriend and our group of friends would often go out. Those of us dating members of the opposite sex were free to hold hands, and flirt, and do what couples do.  In public, Tyler and his boyfriend had to play it straight. They were not free to be themselves. In private, hanging out in someones apartment, the two could feel free to show affection and to not hide their relationship - but only in private.

I find myself thinking so much about that time now, because of the profound effect it had on me. I was torn by the fact that society and the "values" with which I was raised told me that Tyler's lifestyle was wrong and that he should keep it hidden. But that understanding of the world was upended by the simple reality that there was nothing wrong or different about Tyler. To put it as simply as possible - I liked girls, he liked boys... so what? It came to bother me a great deal that he had to live a life in secret for fear of the harsh judgment of others. When I heard the jokes and rude comments that were all too common then they were no longer about some foreign concept of homosexuality; rather they were a direct attack on a friend.

Knowing Tyler, changed who I was and how I saw and understood the world. Not because he was an advocate (he certainly wasn't in the way we understand the term), but because he was just a person, a friend, and he deserved the same shot at happiness and acceptance as anyone else. That he lived his live and that I saw that life - made him the greatest advocate I have ever known.

I'm saddened by the fact that I had not spoken with Tyler in 20 years (to all you young folks out there - be warned - twenty years passes by in a flash) but I am most saddened by the fact that at the time of his death society was still engaged in a battle over the very basic concepts of true equality and acceptance for all. I support and argue for the rights of same sex couples today because I knew Tyler then. This November, voters in Maine, Maryland and Washington will have a chance to become the first folks to endorse marriage equality at the ballot box. It has the potential to be a watershed moment in the quest for equality. I hope that it is.

Wednesday, July 25, 2012

Five "Citizen" Plaintiffs in Petition Challenge All Connected to Democratic Party

The Washington Post is reporting "The Maryland Democratic Party joined with five other plaintiffs Tuesday in bringing a legal challenge against the State Board of Elections for allowing a referendum to move forward on Maryland’s new congressional map."

However, information provided to me shows each of the five other plaintiffs have considerable connections to the Democratic party. So essentially the Maryland Democratic Party has joined with the Maryland Democratic Party in this attempt to deny the people their right to petition.

Name
Connection
Source

Dennis Whitley III


Prince George’s County Democratic Central Committee
Elected by Prince George's County Democratic Voters to 4-year terms:
Legislative Dist. 21: Dennis Whitley III.




Anne Neal


Central Baltimore County Democratic Club
President



See page 2

Karren Jo Pope-Onwukwe


Maryland Democratic National Committeewoman



Joanna Hanes-Lahr


Hosts the workshop on the Annapolis/Capital Area Battleground or Recruitment Phone Bank This Week (see the link - >>>>)




Matthew Thomas


Prince George’s County Democratic Central Committee
Elected by Prince George's County Democratic Voters to 4-year terms:
Legislative Dist. 27A:  Matthew Thomas




Thanks to Howard L. Gorrell.

Friday, July 20, 2012

Congressional Dysfunction, Part 2 - The Rise of Progressive Democrats: 1958-1974

Democrats emerged from the midterm elections of 1930 as the majority party in American politics for the next four decades. Since the end of Reconstruction, much of the south was home to a single party – the Democrats. As a result, the safest seats and the most senior members of the party hailed from the states of the old Confederacy. During this era, coalition building and negotiations with the White House were a joint endeavor. Party leadership needed the consent and cooperation of committee chairs. It was a productive system, but it achieved efficiency and expediency at the expense of deliberation and the full participation of junior, mostly northern liberal, members. Conservative southern Democrats exercised their power as committee chairs to block or significantly amend progressive Democratic legislation. Junior members lacked institutional support and meaningful committee assignments. Progressive Democrats lacked the power of numbers needed to overcome their conservative Southern counterparts.

Though Democrats as well as Republicans in Congress occupied a middle ground for several decades, Democrats began a trek away from the political center near the end of the 1950s. Indeed, the election of 1958 brought with it an influx of new Democratic members in the House (48) and Senate (15), mostly northern liberals. In the election of 1964, President Lyndon Johnson crushed Republican Senator Barry Goldwater. The tidal wave of Johnson’s victory brought 48 freshman Democrats to the House of Representatives and the defeat by Republicans of several southern Democrats. As shown in Figure 4.1, Panel A, the ideological make-up of the Democratic Party was beginning to move left. The balance of power was shifting within the party as well, prompting greater pressure for internal reforms to empower individual members of Congress. The post-Watergate midterm election of 1974 sealed the fate of the Southern Democrats and the era of the textbook Congress referenced by Mayhew. In the election of 1974 Democrats netted 49 seats in Congress, but elected 75 freshman members. The vestiges of the textbook Congress were disappearing, as approximately 85 percent of the members in Congress in 1975 had not been in Congress prior to 1958.

Pressure from Within

The freshman class of Democrats elected in 1958 still lacked power, but they began the pursuit of institutional reforms that would distribute more evenly the powers in Congress. They formed the Democratic Study Group (DSG), a caucus of progressive members dedicated to advancing liberal causes in the House. The efforts of these members and of the DSG met with significant resistance.

Though many issues during the late 1950s and early 1960s contributed to the frustrations of progressive Democrats, few were as crucial as the push for civil rights protections. In 1959, a civil rights bill was reported out of the House Judiciary Committee (chaired by a liberal Democrat from New York), but was then held captive by the Rules Committee when its chair Howard Smith (D-VA), a conservative civil rights opponent, refused to hold hearings. In the Senate, the measure was referred to a Judiciary Committee chaired by a Mississippi Democrat. In the end, civil right opponents viewed the legislation that ultimately emerged in 1960 as a toothless measure watered down to ensure passage. However, the battles of 1959 and 1960 did result in important changes in Congress. The Senate changed its rules to ensure that every member received one major committee assignment, resulting in greater committee participation by junior members. In the House, following the election of John Kennedy in 1960, progressive Democrats convinced the Speaker to increase the size of the Rules Committee to avoid the embarrassment of having the president’s agenda blocked.  This change proved crucial as the House considered the bill that would become the Civil Rights Act of 1964. Though Smith tried to block the legislation, he was compelled to send it to the floor by a majority of his committee members.

The election of Republican President Richard Nixon and the arrival of divided government made the seniority situation intolerable for progressive Democrats. Congress became the repository of the progressive Democratic agenda and the push for internal reforms accelerated after the loss of the White House. The Democratic caucus adopted a rule in 1969 requiring monthly party meetings rather than a single meeting at the start of each Congress. Another new rule provided for party ratification of committee members.   As these were changes to party rules, and not House or Senate rules, they enhanced the power of the party caucus and precluded Southern Democrats from colluding with Republicans to thwart reform efforts on the floor.  A “subcommittee bill of rights” received passage in 1973 granting subcommittees and their chairs independence from their parent committee chairs and subcommittees gained budgets and support through staff. Between 1971 and 1975 series of party rules changes subjected committee chairs to the secret ballot approval of the Democratic caucus. In 1975, as the new Congress was organizing, the Democratic caucus ousted three prominent committee chairs, among them two Southern Democrats.  The seniority system that had been the source of power for the now minority Southern Democrats and a hallmark of the textbook Congress was gone.

Under the Legislative Reorganization Act of 1970 closed door committee meetings were discouraged, committees were required to have formal written rules, committee roll-call votes were to be made public, the rights of minority members were protected, and committee hearings were opened to radio and television coverage. The act provided for the recording of roll call votes on the floor. Until then, the only way to know how a member of Congress had voted was to stand in the viewing gallery and watch the vote.

In this new era, the number of subcommittees grew rapidly, reaching 139 by 1976 – twice the number as in the House just 20 years prior. The growth in number and power of subcommittees, coupled with an influx of new Democratic House members and an increasingly liberal Democratic caucus, saw power distributed among 139 subcommittees and the party’s 291 members. The era following the reforms of the early 1970s received the labels of the era of the subcommittee and the era of the individual member. Regardless of the label, it was a period of decentralization and diffuse power.

Individual members long enjoyed the ability to influence the legislative process in the Senate. In a chamber where most business requires the unanimous consent of members, it was the unwritten rules of the chamber, the behavioral norms, which prevented obstruction.  Among the “acceptable” behavior for Senators of the time was an expected period of apprenticeship and deference to senior Senators, courtesy and reciprocity toward fellow Senators, and a commitment to the institution over all else. This often meant exercising restraint in the use of formal powers.

The Legislative Reorganization Act of 1970 signaled a move away from powerful committees and toward more power for subcommittees and individual members in the Senate. Committee members gained the ability to call for hearings, minority members received the ability to call witnesses, and individual members gained additional staff and resources. The Senate changed its rules in 1975 to reduce the power of the filibuster as a means of minority obstruction. The two-thirds (67 vote) majority required to invoke cloture – to end debate – was reduced to a three-fifth majority (60 votes).

The cumulative effect of these changes was a significant decentralization of power within Congress. Members in the House and Senate gained access to staff and resources, member offices received computers, and additional funds for their district offices. The Congressional Research Service – which provides policy and legal analysis to committees and members – grew in size and resources. Members of Congress professionalized. Professionalism grew in the legislative branch in the 1960s and 1970s with the lengthening of congressional careers.  The number of professional staff grew to help lawmakers become electorally secure by solving constituent problems with “casework” and delivering federal funds for constituency projects – “porkbarreling.” 

In 1960, the total individual staff for Representatives was 2,444. By 1974 that had grown to 5,109 and individual member payroll for staff had increased nearly tenfold.  Comparable increases occurred in staffs for individual Senators, chamber staffs and committee staff.  Committee staff in the House number 394 in 1960, swelled to 1843 by 1981 and remained well above 1960’s total at 1241 in 2005.  In the Senate, committee staff stood at 433 in 1960 before jumping to 1022 in 1981 and remained at 883 in 2005. The total congressional workforce grew dramatically during the period between the late 1960s and 1980. We explore the implications of that growth in chapter six.

Pressure from Without

The constituencies of the parties were changing considerably and adding to the newly emerging distance between Democrats and Republicans in Congress. The passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 increased voter registration by African-Americans, especially in the south, and brought African-Americans into the Democratic Party fold.  African-American voter registration rates jumped from 6.7 percent before passage of the acts to 59.8 percent by 1967 in Mississippi alone. Their increased participation in Democratic party politics contributed to the primary defeats of conservative southern Democrats in states such as Louisiana and Virginia (where House Rules Committee chair Howard Smith (D-VA) lost the nomination to a liberal challenger) at the hands of partisans more in line with the party’s emerging progressive majority. This provided an opportunity for Republican candidates in the south, as they were better able to defeat liberal Democratic nominees. Steadily, either southern Democrats lost elections or they began to tow the party line more frequently.

The south was not the only region to experience change. In a series of court rulings during the 1960s the manner in which states created congressional districts was greatly altered. In 1964 in Wesberry v. Sanders, the U.S. Supreme Court ruled that congressional districts must contain approximately the same number of people. Many states had not engaged in reapportionment or the redrawing of congressional districts to reflect population change for decades. Over the course of the next decade states engaged in a dramatic overhaul of congressional districts. Once dominant rural areas saw power and representation shift to newly emerging suburbs and urban areas achieved equitable representation. Reapportionment made Democrats more attentive to the demands of black voters in the north just as the Civil Rights Act and Voting Rights Act had in the south.

Sprawling suburban development resulted in more heterogeneous district populations and presented new challenges for representatives in the House. It was more difficult to campaign and to reach out to voters in these new suburban districts as they lacked either the community centers of urban areas or the shared history of rural areas. The varied interests, needs, and demands of these new districts required elected representatives to diversify their legislative portfolios and to reach beyond the committee specific specialization of the textbook Congress. Candidates and incumbents needed a new method for securing victory. The rise of interest groups offered one such method as these advocacy organizations provided candidates and members of Congress with a means for connecting with constituencies.

Concomitant with the rise in the number of associations in the 1960s was a rise in the number congressional staff. Newly empowered members of Congress fought to expand subcommittee jurisdictions to engage emerging policy issues. The dramatic increase in the number of bills subject to multiple committee referrals offers evidence of this expansion. Multiple referrals were once quite rare in Congress, but have become quite commonplace since the late 1960s. Jurisdictional expansion and multiple referrals in turn attracted the attention of interest groups seeking to influence policy. Members derived electoral support from these groups. In return for electoral support, the groups attained access to the policy process. A self-reinforcing mechanism resulted, encouraging both more lobbying by associations and additional efforts by members to expand their sphere of policy influence. The number of congressional personnel grew at a pace similar to the rise in the number of associations between 1964 and 1980.

Though Democrats dominated national politics and Congress for much of the time since 1932, electoral changes were breaking that hold on power.  As African-Americans moved toward the Democrats, white southerners and white working class voters began to move away. Republicans reclaimed the White House in 1968 and retained it in 1972. Although Republicans in Congress suffered a tremendous setback in the aftermath of Watergate, the election of 1980 delivered the White House and Republicans claimed just over 190 members in the House for only the third time since 1956. The party captured a six-seat majority in the U.S. Senate – their first majority since 1952. Of greater import, Republicans were now mirroring the Democrats’ trek left and growing partisan homogeneity. Increased competition, the advent of divided government, and the growth of conservative homogeneity among Republicans in Congress set the stage for the next step in the evolution of the contemporary Congress – a return to centralized party control.

Next: Part III - The Rise of Conservative Republicans: 1976-1994

Thursday, July 19, 2012

Steny Hoyer is Right, Food Stamps Stimulate the Economy (and keep children from starving)

The conservative blogosphere is all atwitter (pun intended) responding to House Minority Whip Steny Hoyer's comments that food stamps and unemployment insurance are the two "most stimulative" things you can do for the economy. Almost immediately, Hoyer's Republican opponent in the upcoming election, Maryland House of Delegate Republican Minority Leader Tony O'Donnell, sent out a fundraising e-mail criticizing Hoyer for the comments.

Trouble is, Hoyer's right. Welfare programs like Food Stamps (actually called SNAP - but I use the names interchangeably) and unemployment compensation stimulate the economy.  Who says so? Some left wing think tank? No - Moody's Analytics. Moody’s Analytics estimates that in a weak economy, every dollar increase in SNAP benefits generates $1.72 in economic activity... SNAP is followed closely by - you guessed it - unemployment insurance which generates $1.63 in economic activity for every dollar spent. Comparatively, tax cuts generally break even with every dollar in cuts generating a dollar - of course income tax cuts would be meaningless to the folks who receive Food Stamps given they generally receive no income (because many are children) or their income is so low they'd owe no income taxes.

The federal government spent about $65 billion on Food Stamps in 2010. If Moody's is right, that $65 billion generated about $112.5 billion in economic activity (I wish my 401k gave me a return like that). Now $65 billion is not chump change to a cash starved federal budget and Food Stamp participation has grown rapidly in recent years - growing from 25 million recipient in 2007 to about 46 million today. But during that same time the number of Americans in poverty has increased from 35 million to over 45 million. Unemployment increased from just over 5% to above 9% and now is at just above 8% and 42 percent of all unemployed workers have been out of work for more than half a year.

Of course people would prefer to earn income from work - but that requires available jobs. In the absence of jobs there would be an even worse contraction in economic activity if the unemployed could not buy food, clothes, gas, utilities, and pay rent. This is what programs like SNAP and unemployment allow. The $65 billion in Food Stamp spending is not buying a Cadillac for a welfare queen - it's buying bread, milk, cereal. It's keeping people employed at Wal-Mart, Target, and local grocery stores. The average Food Stamp participant receives $133 per month - which works out to $1.34 per meal. It's hardly an outrageous sum per person, but is cumulatively significant to the economy. The average family on Food Stamps has a net worth of $101 and nearly 60% earn half the poverty level or below (1 in 5 have no earnings at all).

Oh, and one more important thing to note - nearly three-quarters of SNAP dollars go to families with children. So in addition to economic stimulus, the program keeps kids from going hungry and can stave off the malnourishment that could result in a lifetime of health problems and reduced productivity - imagine the economic drag. Not too bad for $65 billion a year.

And to put that $65 billion into some perspective - that 401k that I mentioned -  I, and millions of other working folks, get a tax deduction for putting aside money in a retirement account. The cumulative cost of those tax deductions? $93 billion. I also have a house, something most of those folks with $101 in net worth do not. I get to deduct my mortgage interest. Total cumulative cost? $87 billion.

Welfare programs such as SNAP and unemployment cost the federal government relatively little compared to the money spent on middle and upper middle class welfare support programs like the mortgage interest deduction and the retirement contribution deduction. Now, I happen to agree with many conservatives that tax cuts can stimulate economic growth as well - but such tax cuts cannot help folks without a job.

Food Stamps and unemployment allow tens of million to engage in economic activity and therefor support the jobs of tens of millions more. Take that money away and aside from devastating the lives of recipients there would be a ripple effect felt from retail store employees to manufacturers to farmers to truck drivers to you and to me.

Of course we'd all prefer a growing a economy with fewer welfare recipients and more private sector jobs. That's why programs like SNAP and unemployment matter. Investments in these programs today decrease the likelihood of needing them tomorrow.

*** Full disclosure - Steny Hoyer represents me in Congress and is a member of the Board of Trustees of St. Mary's College - my employer. I like and respect Hoyer and think House Democrats need to dump Nancy Pelosi and elect Hoyer their leader - we'd all be better off. That said, I was an expert witness in the Voting Rights challenge to Maryland's new congressional districts and have argued that Hoyer's 5th Congressional district disenfranchises minority voters by using them to offset conservative voters in southern Maryland.

As to Minority Leader O'Donnell... he represents me in the Maryland House of Delegates. Not only do I know him, I like and respect him. He and I disagree on many issue (but the same is true of Hoyer) but I consider him to be a strong leader within the Maryland Republican party and if Maryland ever adopted a Congressional district map that represented it's people I have no doubt O'Donnell would do well representing Southern Maryland and Anne Arundel county.

My point being - I don't have a dog in the Hoyer/O'Donnell fight. I simply want to make clear that Hoyer is right. Welfare benefits stimulate the economy. And in a high unemployment job market that stimulus is needed. And the stimulus is quite cheap.

Tuesday, July 17, 2012

In Defense of the Senate Filibuster

Senate Majority Leader raised again today the threat of reforming Senate filibuster rules in response to Republican “obstructionism.”  Reid is not alone, many have urged changes in U.S. Senate rules to curtail the growing number of filibusters.  The current cloture rule, requiring sixty votes to end debate, might be reduced to a bare majority requirement to lessen unlimited debates or there may be multiple successive votes on cloture with the threshold falling after each vote – eventually falling to a bare majority.  Such reforms ought to be rejected. As the figure below (excerpted from my forthcoming book with Steven Schier) makes clear, there has been an explosion in the use of the filibusters.  Filibusters increased, and increase demonstrated by the related, and more dramatic, rise in the number of cloture motions. The increase began in the early 1970s, and then declined, only to begin a new rise in the 1980s. There has been an acceleration in recent years, but the figure makes clear that Democrats and Republicans have been part of the “problem.” The solution, however, is not to eliminate the filibuster.

Removing the sixty vote cloture rule might, and probably would, make matters worse.  A simple majority requirement might cause narrow ideological majorities to push through controversial and unpopular legislation. The unpopular health care reform of 2010, for example, avoided a filibuster because it was attached to budget reconciliation legislation that by Senate rules could not be filibustered.  Republicans used the same process to enact the controversial Bush tax cuts in 2001 and 2003. In the absence of a filibuster, both pieces of legislation (in fact any piece of legislation) could be easily undone if a rival ideological majority gains power in the Senate.  This sort of ideological zigzag would produce a cycle of passage and repeal of programs.  Without filibusters, narrow Senate majorities will appoint more ideologically extreme judicial and executive branch nominees.  Given the sharp partisan polarization in Congress and the partisan activists that control the major parties, the filibuster offers the public protection against immoderate majorities enacting intensely ideological agendas only to have them repealed and replaced with an opposing ideological agenda when party control shifts.
Protection against partisan majorities is necessary because, as I have noted many times, America’s two major parties are polarized and neither commands close to majority popular support.  The less-polarized public vacillates between two ideologically extreme parties and at times frustrates both parties by voting in a divided government.  If popular majority preferences consistently were frustrated by arrangements like the Senate cloture rule, then perhaps majoritarian reforms would be in order.  But that is not the case.  At present, the cloture rule prevents either party from readily enacting an agenda that does not reflect the popular will.

Monday, July 16, 2012

Congressional Dysfunction - Part 1: Congress Today

In a recent post, Ezra Klein profiled 14 reasons why the current Congress is the worst Congress ever. I find little to argue with in Klein's myriad criticisms of Congress, other than to suggest that the present dysfunction has been a long time coming and is the result of many moving parts slowing coming into sync. In the next few months, a book that I co-authored with Steven Schier - The Dysfunction of American Politics - will begin to hit book shelves. In advance of that publication I have decided to excerpt my chapter on Congress over the course of the next week or so. What I hope to create is a more complete picture of Congressional dysfunction. Perhaps of greater importance, the picture I'll present portrays a dysfunction that is deeply bipartisan. Contrary to the recent claims by noted Congressional scholars Thomas Mann and Norm Ornstein the dysfunction is not simply the fault of an insurgent and radicalized GOP. The problem goes much deeper than that and as a result will be much more difficult to repair.

Part 1: Congress Today

Writing in 2006 in their aptly titled "The Broken Branch" Congressional scholars Thomas Mann and Norm Ornstein described the contemporary Congress as “a supine, reactive body more eager to submit to presidential directives than to assert its own prerogatives." According to the authors, many characteristics that define the contemporary Congress took shape during the period of the late 1960s. Among the changes was a shift away from the “textbook” Congress of the New Deal era characterized by a decentralized power structure, powerful committee chairs, and weak parties.

Though I agree with much of what Mann and Ornstein presented in The Broken Branch, I believe the seeds of Congressional dysfunction where planted a bit earlier. A combination of internal and external pressures dating to the late 1950s set in motion the creation of the contemporary Congress. A series of elections spanning nearly two decades (from the the 1950s-1970s) changed the ideological make-up of the Democratic party. A combination of court decisions and federal legislation (in the 1960s) changed the nature of congressional constituencies. A series of internal reforms enacted from the late 1960s through the mid-1970s empowered individual members of Congress. Concomitant with these changes was a dramatic rise in interest groups, a marked rise in two-party competition, and the frequent presence of divided partisan control of the legislative and executive branches. Collectively, these changes raised the stakes in the pitched battle over lawmaking.  Highly professionalized members, intense partisan polarization, centralized control among party leaders, and an increased reliance on “unorthodox” procedures to secure passage of legislation mark the Congress that emerged.
Over the course of the next few weeks, I will discuss in detail what I merely summarize now.

Two deeply polarized political parties engaged in a close-fought and bitter struggle for electoral victory and legislative control mark the contemporary Congress. Though the even level of electoral competition has been especially evident in recent years, it first emerged in the late 1970s when Republicans gained a congressional foothold in the south. Increased electoral competition coupled with the advent of divided government gave rise to reforms in the Congress that first empowered individual members to become highly professional representatives but then gave way into further changes that effectively centralized control around the organizing principle of party. In the House and Senate, members realized that the best way to ensure success of the party agenda and to obstruct the minority party was through greater centralization of power in party leadership. This was more readily achieved in the House, but even in the Senate changes in the minority/majority approach to floor activity and amendments show that centralization around party – if not necessarily party leadership – has occurred.

In today’s Congress, lawmakers pursue initiatives important to their constituents, to key interest groups, and to their party in a professional environment of ideologically uniform parties with sharp agenda differences. Washington’s professional and partisan legislature often supports a president in the same party as a congressional majority and obstructs an opposition party president. As measured by the number of pages in the Federal Register, the contemporary Congress appears capable of legislating, though not when addressing issues of major concern.  Why?  The congressional parties diverge sharply on major issues, leading to attempts at legislative domination by partisan majorities and obstruction by partisan minorities.

There are now so many voices at play in policy-making, described fully in chapters two and six, that it has become more difficult to legislate and easier to obstruct. Multiple congressional committees and subcommittees enjoy some degree of jurisdiction over major issues. These committees in turn have established mutually beneficial relationships with interest groups. Multiple committee referrals are quite common as a result. Party leadership uses restrictive rules and post-committee adjustment to ensure buy-in by the multitude of interested voices. Such buy-in requires difficult and finely crafted compromises. In a closely divided and polarized environment, every incentive exists for a minority party to derail or prevent such compromises. The result is often congressional inaction and policy stasis.

The great challenges of the present era will often require congressional action. By acting, Congress frequently defines the scope and powers of the executive bureaucracy – Washington’s “permanent government” -- and the scope and jurisdiction of the judiciary. Since the 1960s and 1970s, Congress has become increasingly divided by party and unable to perform its duties with decorum and dispatch.  Dysfunction within Congress reverberates throughout the entirety of the American political system.

Next - Part 2: The Rise of Progresive Democrats - 1958-1974

Wednesday, July 11, 2012

Protecting the Integrity of the System in Maryland

In a recent Twitter post I took the Maryland Democratic Party to task for placing partisan politics above the interests of the voters of Maryland by producing an egregiously gerrymandered Congressional district map. I further criticized their plan to try and prevent the map from going before the voters by invalidating as many petitions signatures as possible:

congressional map is an affront to Democracy. Will they double down by attacking peoples right to petition? Let the people judge.

In response to my Tweet, the state party chose a diversion instead of a response:

MD Democratic Party
GOP crusade 4 voter ID as a ploy to disenfranchise Dem voters is the real affront to democracy but is silent on this

Of course there are no plans in Maryland to implement a voter ID law and as the petition drive is a Maryland issue I'm not sure why I would write about Republican voter ID reforms in other states.
What I have done is criticize the GOP in TX and NC and PA for engaging in the same partisan gerrymandering as Democrats in Maryland and Illinois. I don't oppose Maryland's new congressional maps because they help Democrats, I oppose the maps because they were drawn solely for the purpose of helping a national political party at the expense of representing the diversity of the state. I do not care which party "wins" or "loses" so long as the game is not rigged. Gerrymandering rigs the game to produce a certain outcome. Of 435 seats in Congress roughly 380 aren't even competitive. Most have been drawn to be safe for one party or the other. So much for Democracy.
I responded to the Maryland Democratic party with a simple question:
and how many Maryland voters will you disenfranchise by challenging their signatures on the redistricting petitions?

Today, as word came down that the State Board of Elections has certified enough valid signatures to move the new maps to the ballot, we all got an answer from the Maryland Democratic Party courtesy of party spokesperson Matt Verghese:
"Maryland has very strict verification standards on petition signatures based on court precedent, MD laws and regulations. Our priority is making sure that these standards have been met and the integrity of the process is maintained."
So there you have it. The Maryland Democratic Party is planning to mount a legal challenge to protect the integrity of the system against every petition signer who may have forgotten to include his middle initial, or may have forgotten that her full middle name appears on her voter registration card.  Some might call that voter suppression.

But there was something about Verghese's "integrity defense" that sounded familiar to me... and then I remembered. I had heard it before.

There is a federal lawsuit underway in Texas seeking to toss that state's new voter ID law. In response to the legal challenge, Texas Attorney General Greg Abbott filed a counter suit asking the U.S. District Court to implement the new voter photo ID.
Abbott defended the voter ID law saying "the state has the right to protect the integrity of its elections." He then cited voter ID precedent established by similar laws in Georgia and Indiana.
So there you have it... the Maryland Democratic Party wants to invalidate as many signatures as possible for the same reason the Texas GOP wants to require a photo ID for voting - to protect the integrity of the system.

Folks, there isn't enough integrity between the two parties to fill a thimble. The Congressional district maps created by Democrats in Maryland and the Republicans in Texas are a testimony to the parties' utter lack of integrity.

The one thing that the Maryland and Texas congressional maps share in common is the simple goal of marginalizing voter choice in an effort to predetermine a partisan outcome. GOP voter ID laws and the Maryland Democratic Party's plan to challenge already validated signatures each serve that same purpose.

If the Maryland Democratic Party is so damn proud of the monstrosity of a map they created then they should welcome the chance to have the voters pass judgment on it. The Board of Elections has already certified the signatures on the petitions - now let the people be heard.

Voters may Reject Maryland's Gerrymandered Mess, but Congress can Stop Redistricting Abuse

Opponents of Maryland's recently adopted Congressional district map appear all but certain of having submitted enough valid signatures to force the map to referendum in November. At last count, they were only 2,200 signatures away from victory with significantly more than 2,500 signatures awaiting validation - an important fact given that only about 10% of all signatures have been rejected thus far. Should the State Board of Election verify enough signatures, the Maryland Democratic party has hinted it will fight the validity of enough accepted signatures to avoid having the map placed before the voters. This is a bad idea. Every non-partisan observer of state politics recognizes the new map for what it is - a partisan power grab intended to net Democrats an additional seat in Congress. To accomplish this, Gov. O'Malley submitted a map to the General Assembly that contains some of the most gerrymandered districts in the nation. Maryland's map is every bit as egregious as the Republican drawn map in Texas. The new Maryland map would likely result in a congressional delegation that is 7 to 1 Democrat over Republican - in a state where Republicans routinely receive at least 40% of the statewide vote. Worse, the map uses minority voters as electoral cannon fodder - slicing and dicing minority communities so that their reliably Democratic votes can dilute Republican votes in the conservative parts of the state that flank the I-95 corridor.

The new Maryland congressional map already mocks the very concept of representative democracy, the state Democratic party really doesn't need to add insult to injury by denying the people their right to petition and judge the map for themselves.


 
Even if voters do reject the new map, there is nothing to prevent Governor O'Malley from resubmitting the same (or a worse) map to the General Assembly. A rejection of the map by voters would send a powerful message, but more needs to be done.

Legislation has been introduced in the current Congress, by Heath Shuler (D-NC) that would end partisan redistricting. The proposed legislation, requires "redistricting to be conducted through a plan developed by the independent redistricting commission established in the state, or if such plan is not enacted into law, the redistricting plan selected by the state's highest court or developed by a U.S. district court."

Want to make sure that this is the last cycle subject to partisan redistricting? Want to undo the mess created by the GOP in states like PA, TX or NC and by the Democrats in IL and MD? Call your member of Congress and demand action on The John Tanner Fairness and Independence in Redistricting Act (H.R. 453).

Understand, gerrymandering is used by both parties. The simple and unfortunate truth is both parties eagerly engage in this systemic abuse. Maryland's 2nd and 3rd Congressional districts have been highlighted as being among the worst gerrymandered in the nation since appearing a decade ago. Republican drawn districts in Texas (or Pennsylvania) are no worse than Democratic drawn districts in Illinois (or Maryland).

In 2008, a bipartisan group of Representatives sponsored legislation to enact nation-wide, non-partisan redistricting reform (Congress has that power under the Constitution) and called on then Speaker Nancy Pelosi to hold hearings - but it went no where.

2008 offered a perfect storm for reform - under divided government and 2 years prior to a new Census neither party knew who would be in control of drawing new district lines. That uncertainty would have made reform achievable.

If you worry that President Bush would have vetoed the measure, the legislation was reintroduced in 2009. At that time Democrats controlled the whole process - the House, the White House, and held a filibuster-proof majority in the Senate. President Obama was on record opposing gerrymandering having once commented "too often, our representatives are selecting their voters, as opposed to the voters selecting the representatives. That is a situation that I think the American people should not accept."

But these efforts at bilateral disarmament went nowhere. In fact, as these legislators were advocating nationwide, bilateral disarmament, Nancy Pelosi joined an effort opposing non-partisan redistricting reform in her home state of California.

Proposals were ignored under Republican Congresses as well and are now languishing in the GOP-controlled House and Democratic Senate. Speaker John Boehner has shown no interest in redistricting reform. The simple fact is both parties, when presented with opportunities to end this process and put the parties on a level playing field - subject only to the judgement of the voters - have balked.

Partisan redistricting is an issue driven by each party's desire for power and neither party wants to surrender power - even if it is the form of bilateral disarmament.

The John Tanner Fairness and Independence in Redistricting Act (H.R. 453) is currently languishing in the House Judiciary Committee's subcommittee on the Constitution. House leadership seems to have no desire in moving this bill forward, but House leadership can be bypassed.

If a simple majority of House members (regardless of party) sign a Discharge Petition then the supported legislation can move to the floor regardless of leadership opposition or failure of committee action. Call your member of Congress  demand they sign a discharge petition for H.R. 453.

Through the creation of safe seats, gerrymandering creates a reality where the greatest threat to a member of Congress comes from a primary challenge within their party - not from a general election contest. The result being members of Congress more concerned with pleasing the small (but highly motivated and partisan) segment of the electorate who participate in primary elections. For Democrats this means committed liberal activists and committed conservative activists for Republicans - neither group represents the broader electorate.

Help reclaim the House of Representatives for the people and free it from the grip of the parties and ideologically motivated issue activists. Rejecting Maryland's newly created map in November would be a small victory in a much larger war. But it would be an important victory. It may even help spur interest in the John Tanner Fairness and Independence in Redistricting Act or another proposal for national reform. Partisan redistricting undermines the very concept of democratic representation - nothing could be more damaging to American democracy.

When you go to the polls in November put your particular party affiliation aside. Opposing Maryland's gerrymandered mess is not an act of partisanship, but supporting it is. Urban Dictionary defines a Partisan Hack as "Someone who cares more about supporting a particular party or ideology than supporting what is morally right, or factually true." The maps in Maryland and Texas and myriad other states were created by such hacks. Take a stand against the ideologues in November and vote to toss the map.