PUBLIC CHOICE THEORY AND GERRYMANDERING: POLITICAL TOLERANCE FOR THE ECONOMICALLY INTOLERABLE
This was originally published in the Western Michigan University Cooley Journal of Practical and Clinical Law in 2017. Excuse the formatting of footnotes as this is not easily rendered into blog format.
TABLE OF CONTENTS
I. Introduction 308
II. Public Choice Theory 312
Public Choice Theory Applied to Elections 313
III. Antitrust Law 315
IV. The Role of Gerrymandering 317
A Brief History of Gerrymandering 317
The Role of the Court in Gerrymandering 318
New Jersey, A Case Study in Gerrymandering 321
V. Applying Antitrust Law to the Political “Market” 328
Voter Turnout in New Jersey for Congressional Elections 329
Congressional Approval Rating v. Incumbency Rates 331
Antitrust Principles and Horizontal Restrictions of Territory 332
VI. Conclusion 333
There has been increasingly low participation in mid-term elections in recent years. The 2014 general election was the lowest *308 turnout in seventy-two years, despite campaign expenditures remaining at an all-time high. With such low turnout and such high-volume expenditures, democratic processes are imperiled. By using the economic arguments of Public Choice Theory and Congressional Districts in New Jersey as a case study, I examine the role of gerrymandering in causing regional and national “market failure” in the same manner as market failure caused by trusts in business. Though by no means suggesting that antitrust law can be used to affect the political process, by viewing the problem through the lenses of economics, however, it may be possible to reanalyze our views of a “political market” and establish the requisite checks to ensure it flourishes.
By any measure, campaign expenditures in the 20142 midterm election were substantial. Estimated at $3.8 billion,3 expenditures are reported to be the highest on record,4 nudging past the 2010 midterm elections by more than $100 million.5 Campaign *309 financing in years coinciding with presidential elections is as mind-boggling as that of the midterms with a record-setting total of $6.3 billion in 2012, knocking aside 2008 expenditures by just below $1 billion.6 Yet despite such whopping numbers, voter turnout has continued to lag in recent years with national voter participation dropping to its lowest in seventy-two years.7 The arguments for the reduced voter turnout are ranged and many: through subjects of big-money interest groups, political action committees,8 voter registration drives,9 a two-step voting process,10 *310 and the ramifications of indefinite incumbency.11 Here, the problem of indefinite incumbency with a root in bipartisan gerrymandering is addressed.12Gerrymandering historically been the shaping of districts to advantage one party and marginalize the opposition.13 Bipartisan gerrymandering is done in a way to secure a series of safe districts that benefit the incumbents of both parties.14 This amounts to a “‘club’ made up of incumbents from both parties.”15 By securing districts which support incumbents from either dominant party,16 a member of the minority party in any given district is essentially disenfranchised. As discussed later, the margin of victory in one district with a Democratic incumbent may be the same as the margin of victory for a Republican in another district. Often, the dominant candidate may run unopposed; an opposition party has no interest in spending campaign money in a district where they *311 are unlikely to receive more than thirty percent of the votes, even in the best of circumstances.Such bipartisan gerrymandering, as described briefly above, can be analogized to horizontal restrictions of territory in antitrust law.17 By considering its history, this paper addresses gerrymandering through the lenses of Public Choice Theory, which applies economic principles to government and politics. As businesses engage in anticompetitive practices, so do political parties. The only difference is that businesses face the ire of the Department of Justice and the Federal Trade Commission, while political parties face the tacit approval of the courts on a non-justiciable issue and inertia in the legislative branches at the state and national levels.18 As anticompetitive behavior between businesses undermines the power of the market, anticompetitive behavior among parties makes a mockery of elections held only for show and serves only to undermine the vitality of the republic.This paper examines the basics of Public Choice Theory and a history of antitrust case law about horizontal restrictions of territory. Public Choice Theory and antitrust law will also examine the history of gerrymandering, and specifically the heavily gerrymandered congressional districts in New Jersey. This outlines the ramification of the districts split neatly in favor of six republican and six democratic incumbents. Finally, this article will illustrate that bipartisan gerrymandering anticompetitive behavior covered under antitrust law. This will show that colluding parties erode competition in the same manner as colluding businesses. It is a system that is entirely intolerable in economics yet in politics is lauded in the open as favoring incumbency over actual competitive elections.19*312
II. PUBLIC CHOICE THEORY
Public Choice Theory applies economic analysis to government and politics.20 “By using economic theory to explore how government decisions are made, public choice theory can help us to understand this process, to identify problems such as the self-interest of particular groups … and to propose ways of limiting these shortcomings.”21 Beyond the realm of philosopher kings, self-interest is key to both the power brokers and the voters who support them. This is not to say that all participation in the political “market” is motivated by self-interest,22 only that “we should not assume that people behave differently in the marketplace for goods and services from how they behave when influencing government decisions.”23 It is important to differentiate between a group and individuals within the group. Though it is primarily individuals who maintain a set of beliefs or values,24 it has been demonstrated that groups may also maintain an organizational interest that may set it apart from that of the constituents.25*313
Public Choice Theory Applied to Elections
One aspect of self-interest in government and politics is behavior by voters, parties, and interest groups.26 Just as Adam Smith’s pin factory seeks the greatest output with the least input, the individual voter seeks to maximize the power of a vote through whatever means available.27 An analysis of voter behavior, like any economic analysis, is not foolproof. Voters can and will act irrationally,28 but political habits–by and large–do match the self-interest of economic habits, often with results completely countering to their interests. The first step in actualizing self-interest of a voter is to be part of a political party; by ceding some individualism to an organization, the voter can benefit from the professional vetting of candidates and subsequent campaign management.29 However, parties have two interests: (1) representing the voter; and (2) maintaining party strength by winning elections. Parties must balance these two, often competing, interests of representing individual voters, while also attracting the largest voter base possible.30 This means that parties often bunch near the political center, giving the voter little real choice between moderate candidates who may differ only *314 slightly.31 This results in tactical voting used by many to obfuscate their true stance by voting for candidates that do not represent their true desires but instead are viewed as the lesser of two evils.32Political parties will be the primary focus of this paper; though admittedly, interest groups do play a tremendous role in how a party functions.33 By targeting the median vote, parties inevitably push toward the center.34 The successful party is one that holds to the center, while wooing as many voters on the edge of the spectrum as possible. In fact, such competition for votes is heralded as the hallmark of democracy for some.35 The drive toward the median voter may be the likely outcome of a power struggle, especially in a winner-take-all system such as in the United States.36 However, what happens when an arrangement is made between parties that precludes wooing the largest voter bloc *315 and instead engineers voting blocs by geography? Enter bipartisan gerrymandering.
III. ANTITRUST LAW
The Sherman Antitrust Act of 189037 was developed in response to decades of anti-competitive practices by major industries in the latter half of the nineteenth century.38 The history of over more than a century of jurisprudence and legal wrangling need not be repeated in its entirety here.39 However, the doctrine has been winnowed into three distinct categories of anticompetitive action: 1) price fixing; 2) bid rigging; and 3) market division.40 In addition to the categories, courts must also consider whether a restraint is horizontal or vertical. Agreements made between different rungs on the production and distribution ladder may be reviewed under a more lenient “rule of reason” doctrine which explores the purposes of the arrangement.41 On the other hand, agreements made between market peers are considered a horizontal *316 restriction of trade and are dealt with a stricter delegation of per se violation.42 Horizontal allotments of territory will be addressed in this section.Within one decade of the Sherman Antitrust Act, a cause of action emerged on territorial allotments made by an association of six cast-iron pipe-making companies operating in thirty-six states.43 The purpose of the agreement was to advance the total price of pipe for all participants, absent of competition, for there was no market force to stop a subtle and continued rise of price in a respective section of territory.44 Because of both price fixing, as well as division of territory, pipe makers were held to have restrained interstate trade.45 By the 1960s, the doctrine on territorial restraints had become more developed, and by 1966, White Motor Co. v. United States dealt with the issue of horizontal trade bluntly.46 “Horizontal territorial limitations, like ‘[g]roup boycotts, or concerted refusals by traders to deal with other traders,’ are naked restraints of trade with no purpose except stifling of competition.”47 Six years after White Motor Co., the Court held in United States v. Topco Associates, Inc., that horizontal territorial allotments were unequivocally a per se violation of the Sherman Antitrust Act.48Topco dealt with territorial limitations placed upon members of an association of independent grocers. Though the association argued that its territorial allotments were designed to help smaller grocers compete against organized chains, the Court looked no further than the horizontal restraint and, absent of Congressional action to the contrary, held that it must fail as a per se violation.49*317
IV. THE ROLE OF GERRYMANDERING
A Brief History of Gerrymandering
The United States Constitution is built with the flexibility to incorporate changing geography and populations by mandating that proportionate representation would be adjusted “every subsequent Term of ten [y]ears, in such [m]anner as they shall by Law direct.”50 Though Section 2 takes its origins from revolutionary gripes on taxation without representation, the fuzzy manner of direction by law as delegated to the states has left reapportionment power in the hands of some who have seen fit to abuse it.51 Gerrymandering can be used to completely disenfranchise political, ethnic, and religious groups. Much of the modern day use of gerrymandering has been used to secure “safe” seats for both parties by divvying geography in manners that defy any sense. To determine just how gerrymandered a state is in comparison with other states, one can use the Polsby-Popper ratio, which measures the perimeter and indentation of a district.52 Though this may not consider coastal geography, districts that are closer to a simple circle are considered more compact and less gerrymandered.53To be certain, the alignment of districts is an exercise in pleasing no one, as any manner of redistricting will ultimately leave significant numbers unsatisfied. A method of using a grid would ultimately place individuals on either side of a street in different districts, while a method of following geography is helpful only in areas with distinctive geographic markers. However, as shown in the case study on New Jersey, it is evident *318 that those in charge of redistricting have given credence only to securing incumbency. Securing incumbency is a state interest per the court in the next section.
The Role of the Court in Gerrymandering
The United States Supreme Court has proved unhelpful in the realm of partisan gerrymandering. Though gerrymandering has been considered justiciable on grounds of Equal Protection under the Fourteenth Amendment,54 the argument is generally caged with gerrymandering that targets a minority race or ethnicity. In Gomillion v. Lightfoot, the Court addressed the changes to the border of Tuskegee from a square to a twenty-eight sided monstrosity to exclude all but “four or five of its 400 Negro voters while not removing a single white voter.”55 The Court made no mention of districts of a purely partisan nature in Gomillion, but closing remarks left the door open for discussion. “When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review [b]ut such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.”56Six years later in Burns v. Richardson, the Court suggested that there might be an invidious intent behind districts created to “cancel out the voting strength of … political elements of a voting population,”57 but that “[t]he fact that district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness.”58 Though this argument tacitly empowered incumbency, it did not address the issue further in a case dealing primarily with multimember senatorial districts.*319 In White v. Weiser, citing to Burns, the Court explicitly declined to disparage a state interest in “maintaining existing relationships between incumbent congressmen and their constituents and preserving the seniority [in Congress].”59 Two cases in the mid-1980s seemed to suggest a way forward, albeit briefly, with a justiciable argument under the Equal Protection Clause. In Karcher v. Dagget, the Court cited to Gomillion in taking for granted that a state might have a reason for geographical deviations necessary to avoid contests between incumbent representatives,60 but Justice Stevens’s concurrence stated resolutely that “if [political districts] serve no purpose other than to favor one segment–whether racial, ethnic, religious, economic, or political–that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community, they violate the constitutional guarantee of equal protection.”61 This argument held weight in Davis v. Bandemer when the Court held that political gerrymandering was justiciable under equal protection.62 However, the Court was unable to develop any sustainable test to apply the “justiciable of equal protection” in future cases and found against the voters.63 More important than the failure to find any applicable test was the rejection of a sort of anecdotal evidence regime suggested by Justice Powell’s dissent. He suggested that the courts were in a position to determine the current political dynamic of individual districts and to even predict the future of the effects in future elections.64 Justice O’Connor, concurring only in judgment, set the stage for future rulings on the subject by rejecting the majority’s notion that district courts could enter into a realm best left to legislators. It would create “political instability and judicial malaise” as judges would be forced to take on the impossible task of determining political affiliations and wants of innumerable *320 citizens.65 By rejecting the Powell test and providing no clear standard of its own, partisan gerrymandering remains an issue that is technically justiciable but with no real recourse in court.66Through recognizing the problems of partisan gerrymandering and simultaneously respecting a state interest in incumbency, the Court is providing de facto approval for the use of bipartisan gerrymandering. Though this will be shown later to be a problem related to voter participation, from a practical perspective, the Court is correct in its desire to steer clear from dealing with cases of partisan gerrymandering for a variety of reasons. First, while most may agree that a problem exists, equating disenfranchisement due to political affiliation with the oft-repeated abuses of minority races and religions demeans all involved. Justice O’Connor states it best in her concurrence from Davis: “[W]hile membership in a racial group is an immutable characteristic, voters can–and often do–move from one party to the other or support candidates from both parties.”67 Though some may treat their political affiliation as a religion or creed, changing it requires little more effort than a flick of a pen with no ramifications, except perhaps dirty looks at Thanksgiving dinner. Second, the evidence-based approach posited by Justice Powell’s dissenting opinion in Davis creates the exact problems cited by the Court.68 At what point can one determine the results of elections being affected by gerrymandering? With the canon of stare decisis as a bedrock of Supreme Court jurisprudence, what becomes of a Court which may have to revisit the apportionment of all 50 states every 10 years, or even after every election cycle? However, the Court, in accepting a state interest in preserving incumbency, is supporting the very premise *321 being attacked in this paper and discussed in the next section on New Jersey.
New Jersey,69 A Case Study in Gerrymandering
Since the redistricting based on the 2000 census, the period has been tumultuous with an attack on United States soil, two wars, a recession, and a shift of party control in the House of Representatives twice. The Republicans retained their dominance wrought in the 1994 midterm “Republican Revolution”70 until a wave of resentment over the Iraq War gave the Democrats a slim majority in 2006.71 This slim lead increased significantly in 2008 with the Democrats gaining twenty-one more seats for a 257-seat majority.72 In 2010, due to concerns over President Obama’s handling of the economy, Republicans turned the tables, and the 257-seat Democratic majority turned into a 242-seat Republican majority–a move which eclipsed the fifty-two-seat gain in 1994.73 Though the majority lost a few seats in 2012, it gained even more in 2014 and currently holds a 247-seat majority in the House.Despite such continual shifting at a national level, Congressional elections in New Jersey have maintained a stark status quo. For incumbents seeking reelection and in all congressional districts, 100% have succeeded, except one race in the Third Congressional District in 2010.74 To explain such *322 incumbent and party dominance, it is necessary to explore the New Jersey Redistricting Commission which reacted to the 2000 Census data.New Jersey Congressional Districts between the 2000 Census and the 2010 Census were divided into seven Democratic strongholds and six Republican strongholds.75 This arrangement currently places New Jersey out of 50 on the Polsby-Popper ration.76 Though the division was ultimately approved through official channels in the New Jersey Redistricting Commission,77 it was based on districts drawn by the incumbents themselves only six months before the commission was formed.78 Based on testimony by the Commission Chair, Alan Rosenthal, protection of incumbency was the primary goal of the redistricting commission.79Though critics of the redistricting program could testify as to their concerns, no questions or clarifications were asked of the individuals testifying. State Senator Joseph Vitale noted that the approximate 19,000 residents of Woodbridge Township80 would be *323 split into three separate Congressional Districts to dilute the vote. Such protection of incumbency was stated to be “mind-boggling” by Finn Caspersen, a citizen testifying before the Commission. Citing the importance of competition in a healthy democracy, Mr. Caspersen expressed dismay at the future results of redistricting for the Twelfth Congressional District which would unduly favor incumbents at the expense of competition.81 Though the 2000 congressional election in the 12th District was highly competitive, with the winner taking only 48.7% of the vote with a 0.4% margin of victory, Mr. Caspersen predicted that future redistricting would result in an incumbent victory that would take more than 58% of votes cast.82 In actuality, Mr. Caspersen significantly understated the damage to competition caused by the redistricting, and the incumbent took more than 61% of the votes cast.83 The 12th District’s subsequent reduction in election competition made it an exception in New Jersey, if only for the fact that in the 2000 election, it had been the only district with any election competition.84As predicted by Mr. Caspersen, such competitiveness was fully “corrected” in the redistricting, and in elections from 2002 to 2010, there was only one change in party and only two incumbents saw percentages dip below 55%.85 New Jersey’s election competition *324 has not fared better since the 2010 reapportionment, which reduced congressional districts to twelve. No seat has changed parties, and only one incumbent saw his margin fall below ten percentage points.86New Jersey’s gerrymandered congressional districts are not of recent vintage and go back to at least the 1970 reapportionment, if not before. New Jersey is a unique case of partisan collusion, and voter participation can be correlated to the gerrymandering as discussed in the section on “market failure.” Consider, for example, the Fourth Congressional District from 1973-1982.TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE*325 This district stretched some forty miles from just north of Philadelphia all the way to the marine border between New Jersey and New York, yet the district narrows to less than five miles halfway across the state. In 1973, the district was solidly Democratic, having been so since shortly after WWII.87 However, the next reapportionments changed the Fourth District dramatically, and it has been solidly Republican under the leadership of Congressman Chris Smith, who has never fallen below a sixty-percent vote share since redistricting prior to the 1984 election.88*326 Though the district map above from 1973-1982 is certainly evident of gerrymandering, its geography makes sense when considering the map from 1983-1994, which resembles laundry after the spin cycle.TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLEThe most oddly shaped district in this map is the Fifth Congressional District. Though the shape of this district was short-lived, it takes up most of the northern border of the state and half of the western border along with an arm of territory which nearly bisects what was the Twelfth and Eighth Districts at the time. The *327 Fifth District significantly changed shape twice since 1984, yet it remains staunchly Republican.89Looking at the current district map, created after the 2010 census, the most oddly shaped district is a tie between the Eighth and Tenth Districts. Both are contiguous in the loosest of sense as the waters surrounding Staten Island split both districts into sections.TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLEThe Eight and the Tenth Districts are solidly Democratic. Eighth District incumbents or their like-party successors consistently take more than 70% of the votes cast.90 Tenth District *328 incumbents have consistently won more than 80% of the votes cast, though the District was so heavily gerrymandered after 2000, the Democratic candidate was unopposed in the 2004, 2006, and 2008 elections.91As shown above, the creative geographical management is bipartisan. Neither Democrats or Republicans are the sole beneficiaries of the districts, though the desire to promote incumbency does ultimately benefit the parties given that noncompetitive elections means resources spent elsewhere with more competition. The demonstration of voting share and closely managed geographic distribution is meant to set the groundwork for the subsequent explanation of “market failure” in the next section.
V. APPLYING ANTITRUST LAW TO THE POLITICAL “MARKET”
It is necessary to reiterate the earlier statement that the analysis of anticompetitive democracy and antitrust law is not meant to suggest that there is a cause of action under antitrust law. The lack of a tangible sale of goods and services is insurmountable, and gerrymandering is purely an intrastate problem beyond the realm of Congressional Acts.92 Any interstate effects would also have the *329 same lack of real market as the gerrymandering itself; therefore, the standard in Wickard v. Filburn does not apply.93However, as anticompetitive business practices undermine the economy for all participants, anticompetitive politicking undermines representative democracy. As shown earlier, New Jersey is highly gerrymandered. There is no doubt to this. The result is a rate of incumbency which exceeds even the high rates nationally.94 To illustrate, there are two outlined examples of market failure in New Jersey’s political scene which indicate that the lack of competition has hurt everyone: 1) lack of overall voting turnout in midterm elections, and 2) approval ratings compared to rates of incumbency. Just as anticompetitive measures by businesses can hurt the economy, anticompetitive politicking can hurt the electorate.
Voter Turnout in New Jersey for Congressional Elections
An example of “market failure” to be considered is the lack of participation in the voting market by voters. It is unfair to take isolated bits of data to justify a preconception, but by showing a broad trend of voter participation in New Jersey as it coincides with major political events, one can get a sense of voter indifference that has accumulated in New Jersey since the gerrymandering discussed previously.95 To be certain, the citizens *330 of New Jersey are willing to participate in elections when their votes matter, e.g. gubernatorial and presidential elections. However, when it comes to voting for representatives, citizens of New Jersey seem to be quite indifferent.For the 2005, 2009, and 2013, gubernatorial race in New Jersey, participation was 62%, 46%, and 38% respectively.96 The gubernatorial race is usually a highly-contested race with both Democratic and Republican candidates winning and losing by narrow margins. Moreover, numerous other candidates are compelled to compete and often act as spoilers for the party, which fails at the goal of holding to the center while simultaneously wooing those not at the center.97 This is also true with presidential elections where New Jersey consistently ranks far higher than the national average of voter participation. In the 2012 election, the citizens of New Jersey participated at a rate of 62% compared with the national rate of 58%, and in 2008, the rate was 68% and 62% respectively.98 Since 1980, New Jersey’s turnout has never fallen behind that of the national rate for a presidential election nor has the rate ever fallen below 50% in the same span of time.99 However, when it comes to participation in Congressional races, New Jersey has consistently fallen far behind the national *331 average–never rising above the 42% participation rate in 1982 and falling as low as 29% in 1986.
Congressional Approval Rating v. Incumbency Rates
Approval rates of Congress have languished below 20% for quite some time; as recently as 2013, approval sank below 10%.100 On the other hand, incumbency rates in Congress are well beyond 90%.101 Though, one explanation for this can be that everyone loves their representative but hates Congress. This cannot be satisfactorily rebutted in the absence of comprehensive scientific studies of approval ratings by individual voters.However, Monmouth University does provide some approval ratings of New Jersey politicians and can shed some light on the subject. For example, Congressman Frank LoBiondo had an approval rating of 56% in 2014 but won 62% of the votes cast a month later.102 Congressman Scott Garrett was similarly situated with a 46% approval rating that turned into 55% of the votes cast at the polls.103 In 2010, reports from an independent polling firm reported that only 31% of voters wanted Congressman Leonard Lance’s reelection, yet he held 59% of the vote share.104 Finally, a *332 polling done in 2013 by the liberal PAC MoveOn.Org showed Rodney Frelinghuysen with a 39% approval rating in 2013, yet he had a vote share of 59% and 63% in 2012 and 2014 respectively.105 Even partisan wishful thinking cannot account for such an incredible gap in approval versus voting results.Of course, as mentioned earlier, there has only been one New Jersey incumbent who has failed to be reelected in the last twenty years. Either by general approval ratings or by approval ratings of individual representatives, there is at least some justification that the representative democracy is neither representative nor democratic.
Antitrust Principles and Horizontal Restrictions of Territory
The Supreme Court has repeatedly recognized a state interest in protecting incumbency. At the micro-level, it makes sense that states would prefer seniority in Congress. Both from the standpoint of influence and favors collected over the course of decades in office, and from the standpoint of experience, no state wants to be a bastion of freshman congressman. However, at the macro-level, undermining local competition to be more competitive in the national arena is nearly identical to the actions taken in Tapco. Moreover, if all states behave in this manner, it amounts to the absurd result of states sacrificing the voting power of half of the populace for the sake of negligible gain at the national level.*333
Though the Court is right to steer clear of finding justiciability in partisan gerrymandering, the Court is wrong in suggesting that incumbency protection is a valid state interest. Though understandable in the short term, in the long view, it is a self-defeating action that endangers the republic for all involved. The result shown above is that New Jersey voters can show appreciation for a competitive election, outvoting the United States as a whole in a presidential election. Yet when it comes to electing those who will represent them in Washington D.C., it is an exercise in futility. The representatives have been functionally chosen; the only question is how great the margin of victory will be in an election that is nothing more than a sham.The type of gerrymandering outlined here, designed to protect incumbency, is only one specific type of gerrymandering. Though the one large part of Public Choice Theory is the advocacy for constitutional restraints on government and the political process,106 the concept is not new with a system that is already rife with checks and balances often taken for granted in a republican system. Rather than the direct democracy conundrum of two wolves and a sheep deciding what is for dinner via majority rule, rule of law prevails and individuals must act through duly elected legislators. Furthermore, even the occasional ground swell of populism which may infest legislative bodies is still checked by fundamental rights, inaction by the executive, and ultimately recourse in the courts. Why then is it so difficult to consider the ramifications of cartelizing the political market? We cannot and should not tolerate such behavior for economic reasons, and we should not tolerate it in politics.
1 Steven is a 2016 graduate of the Florida State University College of Law and former Congressional Candidate with first-hand knowledge on elections.
2 This paper was written prior to the 2016 election. The spirit of this paper holds true for the 2016 election, but because the focus is on mid-term turnout, there was no need to embark on critical analysis of an election that is immaterial to the purposes of the paper.
3 OPENSECRETS.ORG, https://www.opensecrets.org/overview/cost.php (last visited June 6, 2017).
4 It is difficult to provide a comprehensive estimate of expenditures in all elections throughout U.S. history. Complexities include inflation, economic cycles, and major shifts in demographics. Nevertheless, certain litmus can be found to analyze the historic rise in campaign expenditures. For example, consider the arguably contentious election of Abraham Lincoln in 1860 when Lincoln’s expenditures were approximately a mere $100,000, outspending his counterpart Stephen Douglas 2:1. Herbert E. Alexander, Financing Presidential Election Campaigns, 1 ISSUES OF DEMOCRACY 13 (1996), http://cfinst.org/pdf/HEA/137_financinpreselectusis.pdf. Adjusting for inflation, that $100,000 would equal roughly $2.6 million today, a fraction of recent presidential elections. Morgan Friedman, The Inflation Calculator, http://www.westegg.com/inflation (last visited June 6, 2017).
5 OPENSECRETS.ORG, http://www.opensecrets.org/bigpicture (last visited June 6, 2017).
7 Numbers compiled from various sources range from 36.3 to 36.6. See, e.g., Lindsey Cook, Midterm Turnout Down in 2014, U.S. NEWS (Nov. 5, 2014, 3:00 PM), http://www.usnews.com/news/blogs/data-mine/2014/11/05/midterm-turnout-decreased-in-all-but-12-states; The Worst Voter Turnout in 72 Years, N.Y. TIMES (Nov. 11, 2014), http://www.nytimes.com/2014/11/12/opinion/the-worst-voter-turnout-in-72-years.html?_r=0. Nongovernmental sources are used to create estimates from all fifty states as the Federal Election Commission compiles official numbers only biennially. Election Results, FEDERAL ELECTION COMMISSION, http://www.fec.gov/pubrec/electionresults.shtml (last visited June 6, 2017).
8 Though limiting influence of corporations has been a political hot button in the last two decades, such a claim that big money is the key feature in controlling elections is rebuttable at best. See for example then-record-setting donations/expenditures in the Obama/McCain Presidential Race of 2008. The Obama campaign garnered 34 percent of its $337 million from donors giving less than $200 and 57 percent from donors giving less than $1000. Michael Malbin, Revised and Updated 2008 Presidential Statistics, THE CAMPAIGN FIN. INST., (Jan. 8, 2010), http://www.cfinst.org/press/releases_tags/10-01-08/Revised_and_Updated_2008_Presidential_Statistics.aspx. Though one can rightly point out that presidential campaigns consist of more individual donors than congressional campaigns, many representatives and senators also rely heavily on the individual donors. See, e.g., Rep. Gwen Graham, OPENSECRETS.ORG, https://www.opensecrets.org/politicians/summary.php?cycle=2014&cid=N00035688&newMem=Y&type=I (last visited June 6, 2017) (Florida’s Second Congressional District whose $3.7 million to oust incumbent Steve Southerland consisted of 81% individual contributions.).
9 As calculations of eligible voters include only those who are registered to vote, an inflation of indifferent registered voters can warp the numbers. “Rock the Vote” and “Vote or Die” are examples of ill-fated attempts to sponsor voting drives in various elections. These drives are often targeting the young, working poor, and minority voters, who are statistically the least likely to vote. Jose Antonio Vargas, Vote or Die? Well, They Did Vote, WASH. POST (Nov. 9, 2004), http://www.washingtonpost.com/wp-dyn/articles/A35290-2004Nov8.html.
10 The two-step process requiring registration prior to voting is rare in developed nations. Consider the discussion in Canada which actively registers voters prior to elections but also allows same-day registration. JENNIFER S. ROSENBERG & MARGARET CHEN, EXPANDING DEMOCRACY: VOTER REGISTRATION AROUND THE WORLD 6, 22 (Brennan Ctr. For Justice, 2009), https://www.brennancenter.org/publication/expanding-democracy-voter-registration-around-world.
11 The “tyranny” of incumbency is perhaps the earliest addressed threat to the burgeoning republic. THE FEDERALIST NO. 53 (James Madison). Madison was addressing the concerns of those who felt biennial elections were too infrequent, defending them as a balance between indefinite terms of office and constant disruption of elections held every year or even more often. Id.
12 The term bipartisan is used to differentiate between actions of a party at the expense of another party (partisan gerrymandering) and actions of both parties to simultaneously strengthen both parties at the expense of representative democracy.
13 Gerrymandering, Merriam Webster 2017 http://www.merriam-webster.com (27 Aug. 2017).
14 Leroy C. Hardy, Considering the Gerrymander, 4 PEPPERDINE L. REV. 243, 267 (1977).
16 This paper addresses actions taken in recent years and thus pertains only to the balance of power maintained between Republicans and Democrats.
17 As discussed in later sections, a horizontal restriction of territory is a per se violation of the Sherman Antitrust Act and is subject to immediate sanctions, regardless of the intent of those restricting territory.
18 Vieth v. Jubelirer, 541 U.S. 267, 281 (2004).
19 Testimony from Interested Groups and Members of the Public Regarding the Establishment of Congressional Districts for New Jersey for use During the 2000 Decade, N.J. Redistricting Comm’n (Aug. 9, 2001), http://www.njleg.state.nj.us/legislativepub/Pubhear/080901LB.htm.
20 Gordon Tullock, Public Choice, inNEW PALGRAVE DICTIONARY OF ECONOMICS (2d ed. 2008) (excerpt only).
21 EAMONN BUTLER, Public Choice–A Primer, INSTITUTE OF ECON. AFFAIRS 23-24 (2012), http://www.iea.org.uk/sites/default/files/publications/files/IEA%20Public%C20Choice%C20web%C20complete%2029.1.12.pdf.
22 Id. at 107.
23 Id. at 25.
24 Id. at 26.
25 John N. Friedman & Richard T. Holden, Towards a Theory of Optimal Partisan Gerrymandering, STANFORD U., Feb. 26, 2005, at 1, http://web.stanford.edu/group/peg/Papers%20for%20call/Gerrymandering%20-%20FriedmanHolden.pdf.
26 BUTLER, supra note 19, at 25.
27 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 8 (1801).
28 Id. Consider for example the effect by many Tea Party candidates. While the bulk of Democratic and Republican candidates are only slightly left or right of center respectively, from time to time candidates in one extreme or another can disrupt either the primary or the general elections and cause a resulting election of someone even less desired than the moderate candidate removed from the field. The best example of this in recent history was the ousting of Republican United States Senator, Dick Lugar, in the primaries by a far-right Tea Party candidate only to cause the election of a left-of-center Democrat in the general election. See Indiana Election Results 2012: Donnelly Beats Mourdock in Senate Race; Pence Wins Governors Race, WASH. POST (November 7, 2012), http://www.washingtonpost.com/politics/decision2012/indiana-election-results-2012-pence-wins-race-for-governor-donnelly-beats-mourdock-in-senate-raceromneywins-hoosier-state/2012/11/07/0a430bda-23a2-11e2-ac85-e669876c6a24_story.html.
29 BUTLER, supra note 19, at 28.
31 Id. at 32.
32 Id. at 45. Such an action runs entirely counter to the previous example of Senator Lugar. A tactical voter would be content with a right-of-center moderate who may not be extreme enough on all issues but capable of taking the election in which the far-right candidate was unable.
33 For example, the Human Rights Campaign, which focuses on Lesbian, Gay, Bisexual and Transgender Equal Rights, rates politicians on a scale of 0-100 percent. Your Elected Officials, Human Rights Campaign, http://www.hrc.org/elected-officials/profile/house/254#.VZC0MflViko (last visited June 6, 2017). Likewise, an identical rating is used by the National Rifle Association Political Victory Fund. SeeNAT’L RIFLE ASSOCIATION POLITICAL VICTORY FUND, https://www.nrapvf.org/ (last visited June 6, 2017). Such rating systems can play a role in an endorsement of a candidate by either party in a competitive election.
34 Roger D. Congleton, The Median Voter Model, inENCYCLOPEDIA OF PUB. CHOICE 3 (February 2, 2002), http://rdc1.net/forthcoming/medianvt.pdf.
35 Joseph A. Schumpeter posited that democracy was solely a competition among leadership for votes. See Gerry Mackie, Schumpeter’s Leadership Democracy, 37 POL. THEORY 128, 130 (2009).
36 While the United States is not a two-party system through some official government policy, most elections in the United States require a mere plurality rather than a true majority. So while the United Kingdom generally has a de facto two-party system with the Conservative Party and the Labor Party dominating Parliament, the requisite true majority periodically requires a coalition government. Patrick Wintour, David Cameron and Nick Clegg Lead Coalition Into Power, GUARDIAN (May 11, 2010), http://www.theguardian.com/politics/2010/may/12/david-cameron-nick-clegg-coalition.
37 15 U.S.C.A. § 1 (West 2004). The Sherman Antitrust Act has been lauded as the “Magna Carta of free enterprise … as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete–to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster. Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy.” United States v. Topco Assocs., 405 U.S. 596, 610 (1972).
38 Richard S. Williamson, Commentary: The Reagan Administration’s Position on Antitrust Liability of Municipalities, 32 CATH. U. L. REV. 371, 372 (1983).
39 15 U.S.C.A. § 1 (West 2004). (on Westlaw through all citations, nearly 60,000 sources).
40 Price Fixing, Bid Rigging, and Market Allocation Schemes: What They Are and What to Look For, U.S. DEP’T OF JUST., https://www.justice.gov/atr/public/guidelines/211578.htm (last visited June 6, 2017).
41 Eric H. Halvorson, The Per Se Rule as Applied to Vertical Territorial Restraints: An Improper Standard, 24 DUKE L.J. 935, 937 (1975).
42 Id. at 935-36 nn. 3 & 4.
43 Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 212-13 (1899).
44 Id. at 217. Incidentally, the division of territory, for the purpose of fixing prices, accounts for all three categories discussed previously. See id. at 219.
45 Id. at 240-41.
46 See White Motor Co. v. United States, 372 U.S. 253 (1963).
47 Id. at 263. (citing Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212 (1959)). White Motor Co. declined to decide the case on the merits and dealt primarily whether summary judgement by a lower court was appropriate prior to considering precisely what type of restraint had been employed. Id. at 264.
48 United States v. Topco Assocs., 405 U.S. 596, 608 (1972).
49 Id. at 611.
50 U.S. CONST. art. I, § 2, cl. 3.
51 See GRIFFITH, supra note 47, at 72-3.
52 Mike Maciag, Which States, Districts Are Most Gerrymandered?, GOVERNING: BY THE NUMBERS (Oct. 25, 2012), http://www.governing.com/blogs/by-the-numbers/most-gerrymandered-congressional-districts-states.html.
53 Based on the Polsby-Popper ratio, New Jersey ranks 14th among all 50 states. Id.
54 U.S. CONST. amend. XIV, § 2.
55 Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960).
56 Id. at 347.
57 Burns v. Richardson, 384 U.S. 73, 89 (1966). The Court used identical language in a case from one year prior but provided no citation to the case. See Fortson v. Dorsey, 379 U.S. 433, 439 (1965).
58 Burns, 384 U.S. at 89 n. 16.
59 White v. Weiser, 412 U.S. 783, 791 (1973).
60 Karcher v. Dagget, 462 U.S. 725, 740 (1983).
61 Id. at 748 (Stevens, J., concurring).
62 Davis v. Bandemer, 478 U.S. 109, 143 (1986).
63 See id.
64 Id. (Powell, J., dissenting).
65 Id. at 147 (O’Connor, J., concurring).
66 The Court dealt with twenty cases of gerrymandering over the next eighteen years, finding in favor of the government in every instance. Whitney M. Eaton, Where Do We Draw the Line?: Partisan Gerrymandering and the State of Texas, 40 U. RICH. L. REV. 1193, 1201 (2006). The nail in the coffin for any practical came in 2004 when the Court, in a plurality, held that cases on partisan gerrymandering are non-justiciable. Vieth v. Jubelirer, 541 U.S. 267, 281 (2004).
67 Davis, 478 U.S. at 156.
68 See id.
69 The format for the analysis of New Jersey’s Congressional Districts is based upon work done by Gary Stein in 2008. Though the information has been updated, the conciseness and accuracy of his presentation deserves acknowledgment (on file with author).
70 The Republican Revolution, HISTORY, http://www.history.com/this-day-in-history/the-republican-revolution (last visited June 6, 2017).
71 Perry Bacon, Jr., So Why did the Democrats Win?, TIME (Nov. 15, 2006), http://content.time.com/time/nation/article/0,8599,1559793,00.html.
72 The 257-seat majority was the largest majority since the Republican takeover in 1994.
73 Paul Kane, Resurgent Republicans Take Back Control of the House, WASH. POST: POLITICS, (Nov. 3, 2010, 2:09 AM) http://www.washingtonpost.com/wpdyn/content/article/2010/11/03/AR2010110308842.html.
74 Congressman John Adler briefly took control of the Third Congressional District in 2008 after the untimely demise of the incumbent Republican, Congressman Jim Saxton. This fluke of the only Democrat in more than 20 years to take the district was corrected at the end of one term with the election of John Runyan. For years 1984-2009, see Saxton, Hugh James, BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS, http://bioguide.congress.gov/scripts/biodisplay.pl?index=s000097 (last visited June 6, 2017); for year 2000, see generally New Jersey’s 3rd Congressional District, BALLOTPEDIA, https://ballotpedia.org/New_Jersey%27s_3rd_Congressional_District (last visited June 6, 2017).
75 Gary S. Stein, An Unpublished Scandal: New Jersey’s Non-Competitive Congressional Districts, 2008 N.J. LAW. 10 (Aug. 2008).
76 Maciag, supra note 50.
77 Transcript of New Jersey Redistricting Commission, (Aug. 9, 2001), http://www.njleg.state.nj.us/legislativepub/Pubhear/080901LB.htm.
78 Benjamin Brickner, Reading Between the Lines: Congressional and State Legislative Redistricting their Reform in Iowa, Arizona and California and Ideas for Change in New Jersey, EAGLETON INST. POL.,May 2010, at 37, http://www.eagleton.rutgers.edu/research/documents/Brickner_ReadingbetweentheLines.pdf.
79 Transcript of New Jersey Redistricting Commission, supra note 75.
80 Woodbridge, New Jersey Population: Census 2010 and 2000 Interactive Map, Demographics, Statistics, and Quick Facts, CENSUS VIEWER, http://censusviewer.com/city/NJ/Woodbridge (last visited June 6, 2017).
81 Transcript of New Jersey Redistricting Commission, supra note 75.
82 Mr. Caspersen actually stated that the winner took 50.2% of the vote, but he erred in only considering votes cast for candidates who were members of neither the Republican nor Democratic parties. OFFICIAL LIST: CANDIDATE RETURNS FOR HOUSE OF REPRESENTATIVES: FOR NOVEMBER 2000 GENERAL ELECTION 12 (Apr. 17, 2008), [hereinafter OFFICIAL LIST] http://www.state.nj.us/state/elections/election-results/2000-general-elect-house-candidate-tallies.pdf.
83 Id. at 13.
84 The next most competitive district in the 2000 election was a six-percentage point spread in the Seventh Congressional District. Id. at 7.
85 These two incidents were anomalies in the eighty-four elections that have taken place in an overall thoroughly gerrymandered districting of New Jersey. Saxton, Hugh James, supra note 72. The Third District was returned to the Republican Party in 2010, where it has remained in two subsequent elections. New Jersey’s 3rd Congressional District, supra note 72. Rush Holt Jr., despite double-digit leads in all preceding elections dipped to only 53% of votes cast in the 2010 election, a healthy margin to his Republican challenger’s 45% vote share. Rush D. Holt, Jr., BALLOTPEDIA, https://ballotpedia.org/Rush_D._Holt,_Jr. (last visited June 6, 2017). Congressman Mike Ferguson saw his vote share dip to 49% in the 2006 election, but the Republican held on to his seat against a Democratic Challenger with 48% of the vote. New Jersey’s 7th Congressional District, BALLOTPEDIA, https://ballotpedia.org/New_Jersey%27s_7th_Congressional_District (last visited June 6, 2017). This dip coincided with the Democratic takeover of the House in 2006 and by 2010, the Republican candidate was back to customary double-digit wins. Id.
86 The Third Congressional District of New Jersey has struggled to retain the complete domination of the Republican Party since the death of Congressman Sexton prior to the 2008 election. In the 2012 election, incumbent John Runyan garnered a 9oint margin over his Democratic Challenger. OFFICIAL LIST, supra note 80, at 5; This is far below the average 30% point margin of victory in New Jersey Congressional Elections since 1982. See Dubious Democracy, FAIR VOTE CTR. VOTING & DEMOCRACY, http://www.fairvote.org/research-and-analysis/congressional-elections/dubious-democracy/dubious-democracy-1982-2010/state-rankings-2010/average-margin-of-victory/ (last visited June 6, 2017).
87 From 1949 to 1980, the Fourth Congressional District was represented by Charles Howell and Frank Thompson, Jr., Rep. Charles Howell [D]: Former Representative from New Jersey’s 4th District, GOVTRACK.US, https://www.govtrack.us/congress/members/charles_howell/405705 (last visited June 6, 2017); Rep. Frank Thompson Jr. [D]: Former Representative from New Jersey’s 4th District, GOVTRACK.US, https://www.govtrack.us/congress/members/frank_thompson/410779 (last visited June 6, 2017).
88 The Fourth District was not “safe” during the 1980 election against incumbent Frank Thompson who was involved with a bribery scandal. Mr. Smith’s vote share was fifty-seven and dropped to fifty-three in 1982. However, with reapportionment, which took place between 1982 and 1984, the district was reshaped to make it solidly Republican. Chris Heck, My Representative: Chris Smith, http://ux.brookdalecc.edu/fac/history/Tangents/Articles%20for%C20Vol%20III/Microsoft%20Word%20-%20My%20representative,%20Heck.pdf.
89 The Fifth Congressional District has been Republican since 1933.
90 In 2012, the Eighth Congressional District and the Tenth Congressional District saw 78% and 89% of votes cast go to Albio Sires and Donald Payne Jr. OFFICIAL LIST, supra note 80, at 13, 16; In 2014, Sires and Payne took 77% and 85% respectively. Id. at 11, 14.
91 Prior to the 1992 reapportionment, the Tenth District was fairly compact. It is only in recent years that it has taken on an odd appearance. Donald Payne, Sr. ran unopposed by a Republican candidate for three consecutive elections. His son Donald Payne, Jr. has been slightly less successful with 89% and 85% of votes cast in 2012 and 2014. New Jersey’s 10th Congressional District, BALLOTPEDIA, http://ballotpedia.org/New_Jersey’s_10th_Congressional_District (last visited June 6, 2017).
92 Herbert Hovenkamp, Federalism and Antitrust Reform, 40 U.S.F. L. REV. 627, 628 (2006) (discussing the history of dual federalism and purely intrastate exchanges being immune from federal antitrust law. Admittedly, that standard has been increasingly eroded in recent years).
93 Wickard v. Filburn, 317 U.S. 111, 128 (1942) (holding that the production of homegrown wheat not introduced into the market still had an effect on interstate grain sales.)
94 The national rate was at 96%, but New Jersey has had 100% in all but a one recent election year. Nai Issa & Louis Jacobson, Congress Has 11% Approval Ratings but 96% Incumbent Reelection Rate, Meme Says,POLITIFACT (Nov. 11, 2014) http://www.politifact.com/truth-o-meter/statements/2014/nov/11/facebook-posts/congress-has-11-approval-ratings-96-incumbent-re-e/.
95 Correlation does not mean causation and this paper proposes only a theoretical framework for the posited market failure. It is noted that this theoretical framework may have less grounding than more attractive scientific theories, such as that of gravity. See Ellery Schempp, Gravity: It’s Only a Theory, NAT’L CTR. SCI. EDUC. 43 (2007) http://ncse.com/rncse/27/5-6/gravity-its-only-theory.
96 New Jersey Election Result for Governor in 2013, N.J. DIVISION OF ELECTIONS, http://nj.gov/state/elections/2013-results/2013-official-general-election-results-governor.pdf; New Jersey Election Result for Governor in 2009, N.J. DIVISION OF ELECTIONS, http://www.njelections.org/electionresults/2009-official-general-election-gov-lt-gov-tallies-120109.pdf; New Jersey Election Result for Governor in 2005, N.J. DIVISION OF ELECTIONS, http://www.njelections.org/election-results/2005_Official_General_Election-Governor_tallies.pdf; This is compared to participation in the neighboring state of New York with turnout rates of 28%, 36%, and 35% for governor elections in 2014, 2010, and 2006. State Turnout Rates 1980-2012, U.S. ELECTION PROJECT, http://www.electproject.org/home/voter-turnout/voter-turnout-data.
97 The state often has ten or more candidates on the ballot or, in the case of the 2009 election, twelve. Many of these independent candidates reap significant shares of the vote and serve to disrupt for the two main parties. As shown by farleft environmentalist candidate, Christopher Dagget, Whose 6 Percent Vote Share Likely Cost the Democratic Candidate the General Election, http://www.njelections.org/election-results/2009-official-general-election-govlt-gov-tallies-120109.pdf.
98 U.S. ELECTION PROJECT, supra note 94.
100 Congress and the Public, GALLUP, http://www.gallup.com/poll/1600/congress-public.aspx (last visited June 6, 2017).
101 Reelection Rates Over the Years, OPENSECRETS.ORG, https://www.opensecrets.org/bigpicture/reelect.php (last visited June 6, 2017).
102 Monmouth University Poll, NJ CD02: LoBiondo on Course for Win Wellliked incumbent garners crossover support,MONMOUTH U. POLLING INST. (Oct. 16, 2014), https://www.monmouth.edu/assets/0/32212254770/32212254991/32212254992/32212254994/32212254995/30064771087/3e0433dc-e251-4b63-9c6c-8864384b1d95.pdf.
103 Monmouth University Poll, NJ CD05: Garrett Expands Lead Incumbent’s favorables and challenger’s unfavorables grow, MONMOUTH U. POLLING INST. (Oct. 30, 2014), https://www.monmouth.edu/assets/0/32212254770/32212254991/32212254992/32212254994/32212254995/30064771087/05005774-74bb-415b-9641-6ed81eff0b53.pdf.
104 Rosi Eftim, NJ-7 polling: Anti-incumbent Mood May Chip at Lance and Help Potosnak,BLUE JERSEY (June 10, 2010), http://www.bluejersey.com/2010/06/nj7-polling-antiincumbent-mood-may-chip-at-lance-and-help-potosnak/.
105 Results from Public Policy Polling Surveys of 24 Republican-Held House Districts, MOVEON.ORG (Oct. 15-18, 2013), http://moveon.wpengine.netdnacdn.com/wp-content/uploads/2013/10/PPP_House_Survey_Results_3.pdf.
106 BUTLER, supra note 19, at 29.