By Herman Schwartz
Since the government shutdown, public opinion of the Republican Party has hit a new low. Yet the Democrats might not be able to gain from it. Despite the GOP's fall from grace — and even if they suffer a lower vote count in the 2014 midterm elections — the Republicans might still control the House of Representatives and many state legislatures after the polls close.
Our Constitution is unique in that it gives state legislatures virtually complete control over how we elect the president and Congress. In other democracies, the national government runs elections, usually through an impartial commission. Our system, however, lets the party that controls the state legislatures manipulate election rules to help itself and harm its opponents in both the state and House races.
Realizing this, powerful Republican leaders, including former Bush White House Counselor Ed Gillespie and Senior Adviser Karl Rove decided in 2009 to concentrate on winning control of the state legislatures. Through a combination of money, luck and skill, in 2010 the Republicans captured almost a majority of the state legislatures, and then added a few more in 2012. This has given them the power not only to shape the electoral rules and control the House, but also to pass other laws that shape many aspects of our lives.
The public outrage at the Republicans for the government shutdown and the debt ceiling crisis, however, offers the Democrats an opportunity to regain control of some state legislatures. This will require a great deal of money and hard work — and it is the national Democratic Party that has the resources to do this. Democratic national leaders, however, seem to consider that the only elected offices worth seeking are in Washington.
Whether the national organization will be willing and able to pivot to something they have ignored for so long is problematic. But they must act, for a comparable opportunity is unlikely for a long time. Otherwise, gridlock may continue.
As I wrote for Reuters here, after the GOP's crushing defeat in 2008, party strategists poured money and talent into the Republican State Leadership Committee (RSLC) — formed in 2002 to centralize all GOP state efforts. Gillespie took over the chairmanship and installed a senior aide, Chris Jankowski, as president. The goal was to win enough individual state districts to control the state electoral process, and then gerrymander congressional and state districts to ensure that Republicans win the House and state legislature seats for years to come.
The GOP's 2010 " shellacking" of the Democrats gave the Republicans what they wanted — control of the redistricting process in more than 20 states. The timing was key, since redistricting is pegged to the new Census, taken at the start of every decade. "When you hear members talk candidly about their biggest victory," the National Review's Washington Bureau Chief Robert Costa observed, "it wasn't winning the House in 2010. It was winning the state legislatures in 2010 — because they were able to redraw their districts so they had many more conservative voters."
The GOP gerrymandering allowed Republicans to withstand the Democrats' strong 2012 win. There was little damage to the GOP in Congress and the states during that election cycle. Republicans won nine of the 10 states where gerrymandering had produced the greatest discrepancy between votes and seats, netting 7.2 extra seats. It may add even more in Texas because of the Supreme Court's Shelby County ruling, which undermined the Voting Rights Act. That decision also precipitated the passage of scores of voter suppression measures in Republican-controlled Southern states that had subject to federal oversight under the act . The GOP state legislatures also passed hundreds of other conservative laws in 2011 and 2012, many restricting access to abortion. Additional anti-abortion restrictions have been enacted this year.
So far, the Democrats have done little to improve their position. It won't be easy in any case.
The RSLC is tightly organized, with a national game plan run by leading party strategists and staffed with highly-experienced political operatives. It is funded generously by many large donors, including the U.S. Chamber of Commerce and leading corporations. It raised $30 million in 2010, and spent approximately $19.4 million on direct campaign ads for individual candidates. In 2012, it upped the ante — raising almost $40 million, and devoted $29 million to direct campaign spending.
The group has already begun working on the 2014 election cycle. In the first six months of 2013, the organization raised $7.4 million from just 10 contributors — including the U.S. Chamber of Commerce, PhARMA and Altria.
There is a Democratic counterpart to the RSLC, the Democratic Legislative Campaign Committee (DLCC). But it is no match for the RSLC — either alone or together with the two other Democratic campaign organizations, the Democratic Attorney General Association (DAGA) and the Democratic Lieutenant Governors Association (DLGA).
Each group operates independently and has a relatively modest budget. The lieutenant governors group, for example, spent about $1 million combined in both the 2010 and 2012 election cycles. Though the attorney general candidates spent more, $8 million in 2012 and $7 million in 2010, they usually run their own campaigns — like the governors — based on their own agendas.
The DLCC chairman is Michael Gronstal, who is the Iowa Senate majority leader. The executive director since 2007 is Michael Sargeant, who has worked on statewide and congressional elections.
The organization boasts it made "net gains … in 2003, 2004, 2006, 2007, 2008, and 2012" in gaining seats and legislative chambers. While this is true, in four of the last five years, the national Democratic Party won decisively. Barack Obama has been the first Democratic president since Franklin D. Roosevelt to win at least 51 percent of the vote in two elections — and such big victories always have a tailcoat effect.
Consider that Democrats won 170 state seats in 2012, and were able to take back the Maine and Minnesota legislatures from the GOP, as well as chambers in Colorado, Oregon, New Hampshire and New York. But Obama won all these states by substantial margin — Maine by 15.1 percent and Minnesota by 7.7 percent. In Wisconsin, meanwhile, despite Obama's 6.7 percent victory, the Republicans won full control of the state legislature.
Moreover, these Democratic wins were offset by three GOP turnovers. Arkansas, for example, had been completely controlled by Democrats even after 2010. But the GOP captured both legislative chambers in 2012 — the first time this has happened since 1874. Republicans now have a veto-proof legislature opposing a Democratic governor. The GOP also picked up a chamber in Oklahoma.
In fact, because the GOP's gerrymandering was so effective in 2012, the tailcoat effect was far weaker than usual. Republicans won 223 more state legislature seats than Democrats, 3,093 to 2,870, and seized control 57 of 99 legislative chambers. It also increased the Republican veto-proof majorities from 13 to 16, and raised their total control of state governments including the governorship, from 22 to 24. (This includes Nebraska, which has a nominally non-partisan unicameral legislature.)
The Democrats thus wound up with a net gain of only the four chambers in Maine and Minnesota and total control of just 13 states. They can't afford many more such victories.
Though the Democrats have increased both their fundraising and campaign spending, they are still far behind their opponents. In 2012 the DLCC raised $17 million and allocated only $11 million to direct campaign spending, compared with $29 million by the Republicans. The 2010 DLCC direct campaign spending figure was even smaller: $5.9 million, less than a third of the Republicans' $19.4 million.
GOP fundraising has also dwarfed the Democrats'. In 2010 and 2012, the three Democratic state organizations combined raised only $15.5 million and $22 million, roughly half of the RSLC's $30 million and $40 million. The DLCC funding comes overwhelmingly from a handful of labor unions. Almost half the group's top 20 contributors are unions, and only two gave $1 million or above in 2012 — $ 1.7 million from the American Federation of State, County and Municipal Employees and $1 million from the Teamsters.
For its part, the RSLC says it has 100,000 donors nationally. Its top 20 contributors, however, include several multimillion-dollar givers. For example, the U.S. Chamber of Commerce, consistently the top RSLC supporter, gave $4 million in 2012 and $3.9 million in 2010; tobacco companies and Blue Cross/Blue Shield each gave $1 million or more in the two presidential elections.
Perhaps to counter the Republicans, Democratic state legislators this summer created a 501(c)(4) nonprofit group, American Values First (AVF). Like other 501(c )(4)s, it is limited in how much it can spend on elections. How limited, though, is still uncertain — and is part of the regulatory morass that led to the Internal Revenue Service targeting scandal. By contrast, the RSLC is a 527 organization, so it can spend as much as it wants.
Michael Sargeant, of the DLCC, was also appointed AVF executive director. Almost nothing else about this organization is publicly known — neither its financial situation nor personnel other than Sargeant.
He has announced that AVF plans a 50-state effort on increasing ballot access, focused initially on mail-in elections. Given the widespread Republican efforts to suppress voting with ID laws and decreased hours for early voting, it is unclear how increasing ballot access can be enacted — other than in states totally controlled by Democrats, where ballot access is already easy.
The RSLC, meanwhile, is taking concrete steps to correct Republican weakness among minorities and women. In 2011, the group launched the Future Majority Project to identify and support Republican Latino and female candidates for state office. The group spent $5.5 million in the 2012 elections to support 125 Latino candidates and 191 women candidates.
Eighty-four women won, but only 15 Latinos. The GOP announced this summer that it will try to recruit 300 women candidates and 200 minorities, and plans to devote another $5 to $6 million total to the effort.
The angry public reaction against the Republicans for the shutdown and debt crisis could transform the electoral picture and overcome the GOP gerrymandering even at the down-ballot state level. At this time, however, the Democrats' efforts must concentrate on regaining the U.S. House and holding the Senate, for little if anything can be accomplished in Congress unless the gridlock is broken.
The election is a year away, however, and politics is ever-changing and notoriously unpredictable. Unless the Republicans again shut down the government or threaten a government default, memories may fade or other events will intervene. After the 1995 shutdown, Republicans lost only eight congressional seats in the 1996 election in which President Bill Clinton beat Senate Majority Leader Bob Dole handily. And today's map is far more gerrymandered.
But the Democrats must also begin to overcome GOP dominance of the state legislatures. 2020 is the crucial date. If the Democrats fail to retake a substantial number of these state chambers by then, the Republicans will be able to continue the 2011 gerrymandering in 2021. We can likely expect far more state conservative legislation against voting rights, reproductive rights, unions and more. Given the Tea Party's influence within the GOP and its many billionaire backers, gridlock could also continue in Congress — even if the Democrats win every presidential election or the Senate for years to come.
(Herman Schwartz is a constitutional law professor at the American University Washington College of Law. He served as an adviser on constitutional and human rights reforms to many former Soviet republics and former members of the Eastern Bloc. Opinions are his own.)