Thursday, May 11, 2006

Note to Utah: Forget the Fourth House Seat for Now

I have never been a fan of the plan to give Utah a fourth seat in the House of Representatives in exchange for giving Washington, D.C. an actual voting seat in the House. This issue has reared its head before, sometimes with support from Utah’s politicians, and it’s back once again per this Washington Post article (hat tip: Utah Policy Daily).

Here’s the deal. The Constitution (Article I, Section 2) requires seats in the House of Representatives to be apportioned according to population. The apportionment is reallocated every 10 years according to census numbers. The number of seats fluctuated until the Apportionment Act of 1911 set the total number of seats at 435. (This number was temporarily changed to 437 from 1959-1963.)

This means that every time we get new census numbers some readjustment takes place, with some states losing seats and some states gaining seats, depending on population shifts. Given that understanding, it is easy to see why census methodology is such a hot topic in Congress. States stand to lose or gain seats depending on methods used.

Following the 2000 Census, Utah was hoping to pick up a fourth seat in the House, but North Carolina edged Utah out by 856 people. Utah filed suit, claiming that the Census Bureau’s numbers were unfair, citing the fact that it counted North Carolina’s military members serving abroad while failing to count Mormon missionaries temporarily living outside of Utah. When that suit failed, Utah filed a second suit claiming that census takers in North Carolina had erroneously used statistical sampling methods. The Supreme Court ultimately ruled against Utah (see here).

Utah has had a craw in its jaw about its lost congressional seat ever since the whole 2000 Census imbroglio. Moreover, others in Congress have openly recognized the perception of injustice. It just seems so frightfully unfair to come so close, but then to fail due to a close call by the referees. But just as victimology ill suits anybody—indeed it is a nasty self-destructive attitude—it is a poor fit for Utahns, who tend to pride themselves on hardiness and self-sufficiency.

On the other side of the coin, the Constitution allows for representatives to be elected to Congress “by the People of the several States…” You get that? Only states. But why should U.S. citizens in Washington, D.C. and in the various U.S. territories be denied representation in Congress by accident of where they live? How incredibly unfair is that?

Well, the answer is that they do get to elect representatives, because Congress long ago recognized this disparity. But the problem is that those representatives have no real voting power. But this injustice has largely been a problem only for Democrats, because the district and the territories always vote for Democrats, so Republicans haven’t been very sympathetic. Let’s face it; national politics is all about power, so why would anyone in Washington, D.C. volunteer to relinquish power?

When Utah lost its bid for a fourth House seat, the Republicans felt the sting, because Utah is fairly reliable at sending Republicans to Congress, and when it doesn’t, it sends Democrats that vote like Republicans. So a fourth seat for Utah would most likely have meant an additional Republican seat.

With both sides sensing injustice, the time seemed right for a compromise. Here’s the plan: expand the number of seats in the House to 437 permanently, let Utah get its fourth seat, and let D.C. have its own actual voting member instead of a mere figurehead. Now doesn’t that sound like a fair plan? It intends to create fairness, but the deal is riddled with problems.

First, the plan is unconstitutional. The Constitution allows only states to have real voting representatives in Congress. It seems unfair to districts and territories, but it’s the law. No doubt the constitutionality of the seat deal would ultimately be challenged. Republicans might feel somewhat secure about this, because Utah would probably keep its seat while Washington, D.C. probably wouldn’t.

Past efforts to circumvent the Constitution have proven to carry unfortunate consequences. If our Constitution is unfair, let’s amend it through the appropriate avenues. Otherwise, let’s live with it. If the states-only provision is so horribly unfair, why has no serious effort been mounted to amend the Constitution to fix it?

My second problem with the deal is that it would require Utah’s fourth seat to be a statewide position rather than being assigned to a geographic division of Utah. Do we really want the equivalent of a third senator? Splitting Utah into four districts would allow citizens to have better representation. It would allow representatives to better focus on the needs of their individual districts. That is the purpose of the House. Do we want one representative that has overlapping representative responsibilities with three others?

We elect senators by statewide election because they are meant to represent the interests of the state equally with the other 49 states. Senators have to cover far more constituents than House members, so they have to diffuse their efforts and message. Doing this in both the House and the Senate partially defeats the purposes of the Founders to allow for more personal representation as well as representation of the state as a whole. I’m not going to get into the issue of gerrymandering districts here. That will have to wait for another day.

My third problem with the deal is that it’s a permanent fix to a temporary problem. In 2010 there will be another census. No one doubts that Utah will accordingly get its fourth House seat in the 2012 election, just six years from now. And Utah will then get to determine for itself how it should be represented, rather than having this determined by some cabal back east.

Yet another problem with the deal is that it would help only Washington, D.C., and it would only do a halfway job of that. Why does the District merit representation in the House, but not in the Senate? Why do Puerto Rico, American Samoa, Guam, and other territories not merit similar representation? Once again, if this is a flaw in our Constitution, let’s fix it the right way rather than doing something that in reality is only symbolic.

The Republicans in Congress that are pushing the plan have no clear sense of whether it will ultimately succeed. Unlike past efforts, House leadership has not come out in open opposition to it. I seriously hope that the bill fails and that it fails so miserably that no one will dare bring it up again. I wish this, not because I believe that some citizens are unworthy of congressional representation, but because I think the deal would actually be a raw deal for them, for Utah, and for the country.

Many still think Utah got the short end of the stick in 2000 despite the fact that the law says justice was served. OK, so write it up in the history books and move on. Utah should quit wallowing in victim status. Many think that Washington, D.C. has long had a rotten deal. OK, so quit with the whining already. Pull up your bootstraps and do what it takes to really fix the problem. The citizens of the District and of the nation will be better off for it.


That One Guy said...

Interestingly, this was the topic of debate on today's Talk Of The Nation on NPR... to your "second Problem with it": the reason they are suggesting that the fourth seat be a state-wide seat is because a re-draw on boundaries would most definitely become a partisan chess match, trying to allign districts to "stack the deck" in favor of one party over another. In Utah, if you read between those lines, that means that Republicans would be trying to allign the boundaries so as to remove Matheson from office next time around. Matheson is the lone Democrat with regard to this boundary proposal. So, instead of going this route, the proposal was made to make that fourth seat a state-wide seat, eliminating the posturing that would surely occur.

What you say makes the most sense - leave it all alone - and we'll get that other seat when the cencus bears it out.

Scott Hinrichs said...

My suggestion to wait until the next census in no way resolves the gerrymandering problem. The fact is that the politicians that control district alignments enjoy the ability to gerrymander. It's all part of our massive incumbency protection program.

While it would be Republicans trying to oust Matheson in Utah (something they found deucedly difficult to do last time due to SL County), the Demos play the same rotten game in other states. Some argue that gerrymandering has value because it creates blocs of like-minded voters. But the non-like-minded voters in the gerrymandered districts are underrepresented.

One proposal is to require all districts to have four straight sides with four 90° corners. A group did a computer model on this idea, trying out every possible configuration, and found that it would reduce gerrymandering by over 80% regardless of how the districts were drawn. The trouble is that you'd have to get the incumbents currently protected by our existing system to vote for it. Fat chance that would ever happen.

Scott Hinrichs said...

BTW, for those that want to know why the District of Columbia is not a state or part of a state, here's some history.

In 1790 our country established the District of Columbia as a federal district distinct from any state in the union to be the seat of the federal government. This distinction was intended to insulate the federal government from state politics and to put it on neutral ground as far as the various states are concerned. I think the wisdom in this thinking is apparent.

Remember, that prior to the Civil War we really had a weak central government structure where states had much more say in how the country ran. The outcome of the Civil War and the following four decades moved us to a strong central government model. So in 1789 when the Constitution was ratified the federal government's fears of being controlled by the state in which the seat of government resided were very real.

Consequently, Section I, Article 8 of the Constitution says of the powers enumerated to Congress:

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States ..."

This has been interpreted by politicians and courts alike to mean that Congress has sole authority over the governance of the District of Columbia. Politicians and courts alike have agreed that the District is not a state and does not enjoy the same rights and responsibilities as does a state.

The District originally had more than one city, but the city of Washington eventually grew to subsume all of the other cities; although, some sections of Washington are still called by their original city names (i.e. Georgetown).

When the District was founded it pretty much included only elected officials, people that worked for federal agencies, and servants. Elected officials voted in their own states, and Congress ran the D.C. government, so those people were represented. The consensus of thought was that bureaucrats should also be insulated from state politics, so they didn't see it as a problem that those people didn't have direct representation.

Then we get to the servants. Remember that slavery was in full force back then. While many were concerned about the rights of slaves, almost nobody (even among the most enlightened) considered blacks to be on equal footing with whites. Many didn't think blacks should be slaves, but almost nobody thought they ought to function as full-fledged citizens. Don't be too harsh on these bigots. This thinking had been deeply ingrained in the culture for centuries. I can only say that I'm glad I live today. The upshot is that nobody cared that blacks living in the District did not have representation.

So the Founders' intent to insulate the federal government from state politics created another problem. They didn't think it would be an onerous problem back then. The population of the District was very tiny. Today the District has more people than Wyoming, we realize that even government employees deserve representation, and our nation has awakened to the fact that your rights as a citizen should not be dependent on your skin color. Thus, you have the disparity of having a sizeable population that has no direct representation in Congress.

A lot of very smart people have thought for a long time about how to address the rights of the people without opening the federal government up to the possibility of the elected officials of one locality having undue influence. So far nobody has come up with a plan that suits everyone. But, to be honest, they're not really trying that hard. Most U.S. citizens don't give a hoot about it.

Some people think that the Utah seat compromise would at least allow the camel to get its nose in the tent; thereby, allowing future expansion to full representation. I don't like this approach. I think it has some nasty pitfalls and that it shortchanges the citizens of the District. I think we need a robust debate on addressing the problem for real. If we need to amend the Constitution to fix it, let's do it.

Anonymous said...

I think the notion of rectangular districts would cause as many problems as it solves. Most states aren't rectangular, so the districts can't be either. In Utah you have the districts splitting SL and Utah counties, and still end up with Orem and Monticello in the same district, but neighbors in Orem in separate districts.

How about a less partisan approach, say apportionment by a nonpartisan committee set up by the legislature, that would try and avoid the excesses. Of course, as you say, getting any incumbents to OK this is dicy, since it robs them of power.

Scott Hinrichs said...

You are probably right about the squarish district idea. It was just one idea I had read about. Other states have tried apportionment by non-partisan committees, only to end up creating nightmares as ugly as the ones they intended to fix.

Courts have largely ruled that this process is essentially a political process. The unstated result is that there is no requirement for it to be "fair."

I am very concerned about all of the elements that have been put into place to protect incumbency, including McCain-Feingold and other speech-limiting measures. It is as if our politicians seek to protect incumbency above all else. Perhaps that is simply that nature of the political beast.

Anonymous said...

The Constitutional solution is simple: Retrocede the residential parts of the District to Maryland. The District only needs to include the Capitol, the White House, and toher Federal buildings (like the Smithsonian museums on the Mall, etc.) Since the entirety of the DC metropolitan area is now a seamless whole, with no boundaries, with people working in DC, Maryland or Virginia and living in DC, Maryland or Virginia, there is no real point in having a totally separate Federal district for the capital. There is no fence to control entry and exit. There is no possibility that somehow the state of Maryland will hold Congress hostage or interfere with ikts operations. Federal supremacy is now well established in law and in fact (with a strong national Army and Air Force and no possibility that Maryland is going to rebel against the Federal government).

By becoming part of Maryland, the city of Washington will probably justify adding a Representative in the 2010 Census. In the meantime, the Democrats who control the Maryland legislature can gerrymander Washington into the current districts, though it won't make any difference, since they are all Democrats. It will allow Washingtonians to vote for Senators, too.

The constitutional amendment that was passed in modern times to give the District 3 electoral votes for President would become a nullity because nobody would have the District as their official domicile and permanent residence. That would, of course, reduce the automatice Electoral College count for the Democrats by 3, but they can hardly complain that they are being given full rights to vote in local, State and Federal elections and not have Congress dictate to them.

Scott Hinrichs said...

Anonymous, thank you for your thoughtful comments. This sounds like the best solution to me. It truly addresses the issue of representation for current residents of the District. It does not address representation for citizens in the U.S. territories, but perhaps that should be viewed as a separate issue.