The current follies in Washington represent more than just an ordinary political dust-up. The country faces a systemic crisis of governance because the ordinary incentive that keeps our political system functioning — that unreasonable behavior will be punished by the voters — has failed.
It is not difficult to understand how we have gotten to this point. With the assistance of powerful computers and a U.S. Supreme Court that is unwilling or unable to act, Congressional districts today are hypergerrrymandered to an unprecedented degree.
The consequence for all but a handful of representatives is that they have nothing to fear in general elections — but are at constant risk of losing their seats as a result of primary election challenges by more extreme members of their own party. Hence no matter how centrist the views of the district as a whole, compromise is simply at odds with the officeholders’ self-interest.
But redistricting in such a way that election results fairly represent the ideological center of the electorate is difficult, to say the least. The entrenched forces of incumbency are so inveterately powerful that those who campaign promising to fight for fair districts often surrender to status quo once in office.
Moreover, even if a state at the time of a census considers the possibility of redistricting in a manner accurately reflecting its political views, it must worry that other states will not be equally enlightened, thus potentially reducing its national political influence.
Fortunately our system contains a mechanism designed to overcome just this sort of gridlock, a mechanism that voters in every state can and should begin to implement so that it might take effect if needed with the census of 2020.
Under Article V of the Constitution, amendments need not originate with Congress but can be initiated by two-thirds of the state legislatures. This means that people of good will can insist in each and every state legislative race that the candidates take a position in favor of a call for a Constitutional amendment mandating that congressional districts be compact, contiguous and of reasonably equal population. No state will be disadvantaged because the reform will not be implemented in any single state before it takes effect in all states.
The amendment, however, should be considered only a floor. As Republicans, in cynical cooperation with advocacy groups for minorities and with the U.S. Department of Justice under administrations of each party, have demonstrated for the last 45 years, an electoral map meeting these criteria can still be packed in ways that discourage political moderation.
Voters at the state level, therefore, should also insist that their Congressional districts be drawn by nonpartisan — not “bipartisan” — commissions of experts who do their work using topographical models that ignore the probable voting behavior of the residents of the districts.
Without question, legislators have in the past promised to support such plans and then reneged. But that is because public attention tends only to focus on this issue every 10 years.
If a legislator elected in a census year betrays her promise on the issue, she may be defeated in the next election but the voters are stuck with gerrymandered districts for another decade.
The solution to that part of the problem is for constituents to make the creation of a nonpartisan redistricting process a priority in each and every year. If legislators elected in 2014 do not deliver the relevant changes to state law by 2016, motivated voters can replace them with new ones well before 2020.
Because state legislative races are vastly more numerous and more local than congressional ones, the political composition of the state legislatures is more fluid than that of Congress.
This means that if the widespread revulsion with our current situation translates itself into political activism, voters are less likely to have their concerns drowned under a tidal wave of extremist money.
‘WE THE PEOPLE’
If politicians get the message, the effects will be remarkable. Once convinced that a majority of “We the People” is serious about using the twin tools of Constitu­tional amendment and statutory change to restore the country’s original vision of how to resolve political disagreements, and long before the pressure from the ­bottom up actually leads to ­structural changes, representatives will have to respond to an entirely different set of incentives than they now do.
With the looming prospect that retaining their seats will require defending extremist positions to a centrist group of voters in general elections, rather than guarding their primary flanks against even more radical members of their own parties, today’s members of Congress will have to consider not just the next election but the ones after that.
No change will happen unless the public cares enough to take action. Now, as always, the country will have no better a political system than its citizens demand.
Eric M. Freedman is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University Maurice A. Deane School of Law.