PSC101 REACTION PAPER

An Introduction to American Politics

We the People

121212 edition

ESSENTIALS

wtp12e_ess_ptr_ch00_fm_i-1.indd 1 11/29/18 11:37 AM

T he

11 6t

h Co

ng re

ss , J

an ua

ry 3

, 2 01

9– Ja

nu ar

y 3,

2 02

1 U

ni te

d S ta

te s

H ou

se o

f R

ep re

se nt

at iv

es D

em oc

ra ts

: 2 3 3

R ep

ub lic

an s:

1 9 9

U nd

ec id

ed : 3

2 0 1 8 E

le ct

io n

R es

ul ts

: D em

oc ra

ts g

ai ne

d co

nt ro

l o f t

he H

ou se

*

D em

oc ra

t R

ep ub

lic an

U nd

ec id

ed

wtp12e_ess_ptr_ch00_fm_i-1.indd 2 11/29/18 11:37 AM

N V

C A

O RW

A

M T

ID

U T

A Z

A K

H I

N M

T X

O K

K S

N E

M N

IA

M O A R

G A

S C

N C

A LT NK

Y

O H

M E

M D

D EN J

N H

M A R

I C

T

V T

P A

N Y

V A

W V

F L

M S

L A

W I IL

IN

M I

S DN D

C O

W Y

U ni

te d

S ta

te s

S en

at e

D em

oc ra

ts : 4

5

R ep

ub lic

an s:

5 3

In

de pe

nd en

ts : 2

20 18

E le

ct io

n R

es ul

ts : R

ep ub

lic an

s re

ta in

ed c

on tr

ol o

f t he

S en

at e*

* D

at a

ar e

ba se

d on

e le

ct io

n re

su lts

a s

of N

ov em

be r

2 8 , 2

0 1 8 . S

ev er

al r

ac es

r em

ai ne

d

un de

ci de

d pe

nd in

g re

co un

ts a

nd r

un of

f e le

ct io

ns .  

2 D

em oc

ra ts

2 R

ep ub

lic an

s 1 D

em oc

ra t

an d

1 R

ep ub

lic an

1 In

de pe

nd en

t an

d 1

D em

oc ra

t 1 In

de pe

nd en

t an

d 1

R ep

ub lic

an

wtp12e_ess_ptr_ch00_fm_i-1.indd 3 11/29/18 11:38 AM

wtp12e_ess_ptr_ch00_fm_i-1.indd 4 11/29/18 11:38 AM

★ BENJAMIN GINSBERG THE JOHNS HOPKINS UNIVERSITY

★ THEODORE J. LOWI LATE OF CORNELL UNIVERSITY

★ MARGARET WEIR BROWN UNIVERSITY

★ CAROLINE J. TOLBERT UNIVERSITY OF LOWA

★ ANDREA L. CAMPBELL MASSACHUSETTS INSTITUTE OF TECHNOLOGY

★ ROBERT J. SPITZER SUNY CORTLAND

An Introduction to American Politics

We the People

n W. W. NORTON & COMPANY NEW YORK LONDON

121212 edition

ESSENTIALS

wtp12e_ess_ptr_ch00_fm_i-1.indd 5 11/29/18 11:38 AM

W. W. Norton & Company has been independent since its founding in 1923, when William Warder Norton and Mary D. Herter Norton first published lectures delivered at the People’s Institute, the adult education division of New York City’s Cooper Union. The firm soon expanded its program beyond the Institute, publishing books by celebrated academics from America and abroad. By mid-century, the two major pillars of Norton’s publishing program—trade books and college texts—were firmly established. In the 1950s, the Norton family transferred control of the company to its employees, and today—with a staff of four hundred and a com- parable number of trade, college, and professional titles published each year—W. W. Norton & Company stands as the largest and oldest publishing house owned wholly by its employees.

Copyright © 2019, 2017, 2015, 2013, 2011, 2009, 2006, 2002 by W. W. Norton & Company, Inc.

All rights reserved Printed in Canada

Marketing Manager, Political Science: Erin Brown Art Director: Rubina Yeh Text Design: Jen Montgomery Photo Editor: Stephanie Romeo Photo Researcher: Elyse Rieder Director of College Permissions: Megan Schindel Permissions Associate: Elizabeth Trammell Information Graphics: Kiss Me I’m Polish LLC, New York Composition: Graphic World, Inc. Manufacturing: TransContinental

Editor: Peter Lesser Project Editor: Christine D’Antonio Assistant Editor: Anna Olcott Manuscript Editor: Lynne Cannon Managing Editor, College: Marian Johnson Managing Editor, College Digital Media: Kim Yi Production Manager, College: Ashley Horna Media Editor: Spencer Richardson-Jones Associate Media Editor: Michael Jaoui Media Editorial Assistant: Tricia Vuong Ebook Production Manager: Danielle Lehmann

Permission to use copyrighted material is included in the cr edits section of this book, which begins on page A83.

The Library of Congress has cataloged the full edition as follows:

Library of Congress Cataloging-in-Publication Data Names: Ginsberg, Benjamin, author. Title: We the people : an introduction to American politics / Benjamin Ginsberg, The Johns Hopkins University, Theodore J. Lowi, Cornell University, Margaret Weir, Brown University, Caroline J. Tolbert, University of Iowa, Andrea L. Campbell, Massachusetts Institute of Technology. Description: Twelfth Edition. | New York : W.W. Norton & Company, [2018] | Includes bibliographical references and index. Identifiers: LCCN 2018046033 | ISBN 9780393644326 (hardcover) Subjects: LCSH: United States--Politics and government--Textbooks. Classification: LCC JK276 .G55 2018 | DDC 320.473--dc23 L C r ecord av ailable at https://lccn.loc. gov/2018046033

ISBN 978-0-393-66464-5

W. W. Norton & Company, Inc., 500 Fifth Avenue, New York, NY 10110 wwnorton.com

W. W. Norton & Company Ltd., 15 Carlisle Street, London W1D 3BS

1 2 3 4 5 6 7 8 9 0

wtp12e_ess_ptr_ch00_fm_i-1.indd 6 11/29/18 11:38 AM

To: Teresa Spitzer Sandy, Cindy, and Alex Ginsberg David, Jackie, Eveline, and Ed Dowling Dave, Marcella, Logan, and Kennah Campbell

wtp12e_ess_ptr_ch00_fm_i-1.indd 7 11/29/18 11:38 AM

wtp12e_ess_ptr_ch00_fm_i-1.indd 8 11/29/18 11:38 AM

ix

Preface xxi Acknowledgments xxiii

PART I FOUNDATIONS

1 ★ Introduction: The Citizen and Government 2

Government 5 Different Forms of Government Are Defined by Power

and Freedom 5 Limits on Governments Encouraged Freedom 6 Expansion of Participation in America Changed the

Political Balance 7 The Goal of Politics Is Having a Say in What Happens 7

Citizenship Is Based on Political Knowledge and Participation 8

Political Efficacy Means People Can Make a Difference 9

The Identity of Americans Has Changed over Time 10 Immigration and Increasing Ethnic Diversity Have

Long Caused Intense Debate 10 Who Are Americans Today? 12

America Is Built on the Ideas of Liberty, Equality, and Democracy 16 Liberty Means Freedom 16

AMERICA SIDE BY SIDE Global Diversity 17

Equality Means Treating People Fairly 18 Democracy Means That What the People Want Matters 19

Government Affects Our Lives Every Day 20 Trust in Government Has Declined 21

American Political Culture: What Do We Want? 23 WHO PARTICIPATES? Who Voted in 2016? 25

Key Terms 28 For Further Reading 29

Contents

wtp12e_ess_ptr_ch00_fm_i-1.indd 9 11/29/18 11:38 AM

x

2 ★ The Founding and the Constitution 30

The First Founding: Ideals, Interests, and Conflicts 33 Narrow Interests and Political Conflicts Shaped the First

Founding 34 British Taxes Hurt Colonial Economic Interests 34 Political Strife Radicalized the Colonists 35 The Declaration of Independence Explained Why the Colonists

Wanted to Break with Great Britain 36 The Articles of Confederation Created America’s First National

Government 37

The Failure of the Articles of Confederation Made the “Second Founding” Necessary 38

The Annapolis Convention Was Key to Calling a National Convention 39

Shays’s Rebellion Showed How Weak the Government Was 39 The Constitutional Convention Didn’t Start Out to Write

a New Constitution 40

The Constitution Created Both Bold Powers and Sharp Limits on Power 43

The Legislative Branch Was Designed to Be the Most Powerful 44 The Executive Branch Created a Brand New Office 46 The Judicial Branch Was a Check on Too Much Democracy 47 National Unity and Power Set the New Constitution Apart

from the Old Articles 48 The Constitution Establishes the Process for Amendment 48 The Constitution Sets Forth Rules for Its Own Ratification 48 The Constitution Limits the National Government’s Power 48

Ratification of the Constitution Was Difficult 51 Federalists and Antifederalists Fought Bitterly over the Wisdom

of the New Constitution 52

AMERICA SIDE BY SIDE Comparing Systems of Government 55

Both Federalists and Antifederalists Contributed to the Success of the New System 56

Changing the Constitution 56 Amendments: Many Are Called; Few Are Chosen 56 The Amendment Process Reflects “Higher Law” 57

The Constitution: What Do We Want? 60 WHO PARTICIPATES? Who Gained the Right to Vote through

Amendments? 61

Key Terms 64 For Further Reading 65

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 10 11/29/18 11:38 AM

xi

3 ★ Federalism 66

Federalism Shapes American Politics 69 Federalism Comes from the Constitution 69

The Definition of Federalism Has Changed Radically over Time 73

Federalism under the “Traditional System” Gave Most Powers to the States 73

The Supreme Court Paved the Way for the End of the Early Federal System 75

FDR’s New Deal Remade the Government 77 Changing Court Interpretations of Federalism Helped the

New Deal While Preserving States’ Rights 78 Cooperative Federalism Pushes States to Achieve

National Goals 80 National Standards Have Been Advanced through

Federal Programs 81

AMERICA SIDE BY SIDE Cooperative Federalism: Competition or a Check on Power? 83

New Federalism Means More State Control 85 There Is No Simple Answer to Finding the Right National–State Balance 86

Federalism: What Do We Want? 90 WHO PARTICIPATES? Who Participates in State and Local Politics? 91

Key Terms 94 For Further Reading 95

4 ★ Civil Liberties and Civil Rights 96

The Origin of the Bill of Rights Lies in Those Who Opposed the Constitution 99

The Fourteenth Amendment Nationalized the Bill of Rights through Incorporation 101

The First Amendment Guarantees Freedom of Religion, Speech, and the Press 103

Freedom of Religion 103 The First Amendment and Freedom of Speech and of the

Press Ensure the Free Exchange of Ideas 105 Political Speech Is Consistently Protected 106 Symbolic Speech, Speech Plus, Assembly, and Petition Are Highly Protected 106 Freedom of the Press Is Broad 108 Some Speech Has Only Limited Protection 109

The Second Amendment Now Protects an Individual’s Right to Own a Gun 112

Rights of the Criminally Accused Are Based on Due Process of Law 113 The Fourth Amendment Protects against Unlawful Searches and Seizures 114 The Fifth Amendment Covers Court-Related Rights 115

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 11 11/29/18 11:38 AM

xii

The Sixth Amendment’s Right to Counsel Is Crucial for a Fair Trial 117

The Eighth Amendment Bars Cruel and Unusual Punishment 118

The Right to Privacy Means the Right to Be Left Alone 119

Civil Rights Are Protections by the Government 120 Plessy v. Ferguson Established “Separate but Equal” 121 Lawsuits to Fight for Equality Came after World War II 122 The Civil Rights Struggle Escalated after Brown v. Board

of Education 123 The Civil Rights Acts Made Equal Protection a Reality 125 Affirmative Action Attempts to Right Past Wrongs 128

The Civil Rights Struggle Was Extended to Other Disadvantaged Groups 130

Americans Have Fought Gender Discrimination 130 Latinos and Asian Americans Fight for Rights 132 Native Americans Have Sovereignty but Still Lack Rights 134

AMERICA SIDE BY SIDE Civil Liberties around the World 135

Disabled Americans Won a Great Victory in 1990 136 LGBTQ Americans 136

Civil Liberties and Civil Rights: What Do We Want? 137 WHO PARTICIPATES? Religious Affiliation and Freedom of Religion 139

Key Terms 142 For Further Reading 143

PART II POLITICS

5 ★ Public Opinion 144

Public Opinion Represents Attitudes about Politics 147 Americans Share Common Political Values 148 America’s Dominant Political Ideologies Are Liberalism

and Conservatism 149 Americans Exhibit Low Trust in Government 152

Political Socialization Shapes Public Opinion 152

Political Knowledge Is Important in Shaping Public Opinion 157

The Media and Government Mold Opinion 160 The Government Leads Public Opinion 160 Private Groups Also Shape Public Opinion 161 The News Media’s Message Affects Public Opinion 161 Government Policies Also Respond to Public Opinion 162

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 12 11/29/18 11:38 AM

xiii

Measuring Public Opinion Is Crucial to Understanding What It Is 163 Public-Opinion Surveys Are Accurate If Done Properly 163

AMERICA SIDE BY SIDE Confidence in Democratic Institutions 164

Why Are Some Polls Wrong? 166

Public Opinion: What Do We Want? 169 WHO PARTICIPATES? Who Expresses Their Political Opinions? 171

Key Terms 174 For Further Reading 175

6 ★ The Media 176

Media Have Always Mattered in a Democracy 179 Journalists Are News-Gathering Professionals 179 The Profit Motive Drives the News Business 180 More Media Outlets Are Owned by Fewer

Companies 180

The Media Today 182 Newspapers Still Set the Standard for News

Reporting 183 Broadcast Media Are Still Popular 184 Radio Has Adapted to Modern Habits 185 Digital Media Have Transformed Media Habits 186 Citizen Journalism Gives People News Power 189 Concerns about Online News 190

The Media Affect Power Relations in American Politics 191 The Media Influence Public Opinion through Agenda-Setting,

Framing, and Priming 191 Leaked Information Can Come from Government Officials

or Independent Sources 193 Adversarial Journalism Has Risen in Recent Years 194 Broadcast Media Are Regulated but Not Print Media 194

AMERICA SIDE BY SIDE The Internet and Global Democracy 196

The Media: What Do We Want? 197 WHO PARTICIPATES? Civic Engagement in the Digital Age 199

Key Terms 202 For Further Reading 203

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 13 11/29/18 11:38 AM

xiv

7 ★ Political Parties, Participation, and Elections 204

Parties and Elections Have Been Vital to American Politics and Government 207

Political Parties Arose from the Electoral Process 207 Parties Recruit Candidates 208 Parties Organize Nominations 208 Parties Help Get Out the Vote 209 Parties Organize Power in Congress 210

America Is One of the Few Nations with a Two-Party System 210 Parties Have Internal Disagreements 217 Electoral Realignments Define Party Systems in American

History 217 American Third Parties Sometimes Change the Major Parties

and Election Outcomes 218 Group Affiliations Are Based on Voters’ Psychological Ties

to One of the Parties 220

Political Participation Takes Both Traditional and Digital Forms 220

Voting Is the Most Important Form of Traditional Participation 220 Digital Political Participation Is Surging 221 Voter Turnout in America Is Low 223 Why Do People Vote? 224

AMERICA SIDE BY SIDE Voter Turnout in Comparison 226

Voters Decide Based on Party, Issues, and Candidate 227 Party Loyalty Is Important 227 Issues Can Shape an Election 228 Candidate Characteristics Are More Important in the Media

Age 229

The Electoral Process Has Many Levels and Rules 229 The Electoral College Still Organizes Presidential Elections 231

The 2016 and 2018 Elections 232 The 2016 Elections 232 Understanding the 2016 Results 233 The 2018 Election: A Blue Wave Meets a Red Wall 235 The 2018 Election and America’s Future 236

Money Is Critical to Campaigns 237 Campaign Funds Come from Direct Appeals, the Rich, PACs, and

Parties 237

Political Parties, Elections, and Participation: What Do We Want? 240

WHO PARTICIPATES? Who Participated in the 2016 Presidential Election? 241

Key Terms 244 For Further Reading 245

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 14 11/29/18 11:38 AM

xv

8 ★ Interest Groups 246

Interest Groups Form to Advocate for Different Interests 249

What Interests Are Represented? 250

AMERICA SIDE BY SIDE Civil Society around the World 252

Some Interests Are Not Represented 253 Group Membership Has an Upper-Class Bias 253

The Organizational Components of Groups Include Money, Offices, and Members 254

The Internet Has Changed the Way Interest Groups Foster Participation 257

The Number of Groups Has Increased in Recent Decades 258 The Expansion of Government Has Spurred the Growth of Groups 259 Public Interest Groups Grew in the 1960s and ’70s 259

Interest Groups Use Different Strategies to Gain Influence 259 Direct Lobbying Combines Education, Persuasion, and Pressure 261 Cultivating Access Means Getting the Attention of Decision Makers 262 Using the Courts (Litigation) Can Be Highly Effective 263 Mobilizing Public Opinion Brings Wider Attention to an Issue 264 Groups Often Use Electoral Politics 266

Groups and Interests: What Do We Want? 267 WHO PARTICIPATES? How Much Do Major Groups Spend? 269

Key Terms 272 For Further Reading 273

PART III INSTITUTIONS

9 ★ Congress 274

Congress Represents the American People 277 The House and Senate Offer Differences

in Representation 277 Representation Can Be Sociological or Agency 278 The Electoral Connection Hinges on Incumbency 281 Direct Patronage Means Bringing Home the Bacon 286

The Organization of Congress Is Shaped by Party 288 Party Leadership in the House and the Senate Organizes Power 289 The Committee System Is the Core of Congress 289 The Staff System Is the Power behind the Power 291

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 15 11/29/18 11:38 AM

xvi

AMERICA SIDE BY SIDE Women’s Parliamentary Representation Worldwide 292

Rules of Lawmaking Explain How a Bill Becomes a Law 293 The First Step Is Committee Deliberation 293 Debate Is Less Restricted in the Senate Than in the House 295 Conference Committees Reconcile House and Senate Versions

of Legislation 296 The President’s Veto Controls the Flow of Legislation 297

Several Factors Influence How Congress Decides 297 Constituents Matter 297 Interest Groups Influence Constituents and Congress 298 Party Leaders Rely on Party Discipline 299 Partisanship Has Thwarted the Ability of Congress to Decide 303

Much Congressional Energy Goes to Tasks Other Than Lawmaking 303

Congress Oversees How Legislation Is Implemented 304 Special Senate Powers Include Advice and Consent 305 Impeachment Is the Power to Remove Top Officials 305

Congress: What Do We Want? 306 WHO PARTICIPATES? Who Elects Congress? 307

Key Terms 310 For Further Reading 313

10 ★ The Presidency 314

Presidential Power Is Rooted in the Constitution 317 Expressed Powers Come Directly from the Words

of the Constitution 318 Implied Powers Derive from Expressed Powers 323 Delegated Powers Come from Congress 324 Modern Presidents Have Claimed Inherent Powers 324

AMERICA SIDE BY SIDE Executive Branches in Comparison 325

Institutional Resources of Presidential Power Are Numerous 327

The Cabinet Is Often Distant from the President 327 The White House Staff Constitutes the President’s Eyes and

Ears 327 The Executive Office of the President Is a Visible Sign of the

Modern Strong Presidency 328 The Vice Presidency Has Become More Important since the

1970s 329 The First Spouse Has Become Important to Policy 330

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 16 11/29/18 11:38 AM

xvii

Party, Popular Mobilization, and Administration Make Presidents Stronger 331

Going Public Means Trying to Whip Up the People 332 The Administrative Strategy Increases Presidential Control 334 Presidential Power Has Limits 339

The Presidency: What Do We Want? 340 WHO PARTICIPATES? Who Voted for Donald Trump in 2016? 341

Key Terms 344 For Further Reading 345

11 ★ Bureaucracy 346

Bureaucracy Exists to Improve Efficiency 349 Bureaucrats Fulfill Important Roles 349 The Size of the Federal Service Has Actually

Declined 352 The Executive Branch Is Organized Hierarchically 352

Federal Bureaucracies Promote Welfare and Security 355

Federal Bureaucracies Promote Public Well-Being 356

AMERICA SIDE BY SIDE Bureaucracy in Comparison 357

Federal Agencies Provide for National Security 358 Federal Bureaucracies Help to Maintain a Strong National Economy 362

Several Forces Control Bureaucracy 363 The President as Chief Executive Can Direct Agencies 363 Congress Promotes Responsible Bureaucracy 365 Can the Bureaucracy Be Reformed? 366

Bureaucracy and Democracy: What Do We Want? 367 WHO PARTICIPATES? Waiting for a Veterans Affairs Health Care Appointment 369

Key Terms 372 For Further Reading 373

12 ★ The Federal Courts 374

The Legal System Settles Disputes 377 Court Cases Proceed under Criminal and Civil Law 377 Types of Courts Include Trial, Appellate, and Supreme 378

The Federal Courts Hear a Small Percentage of All Cases 381

The Lower Federal Courts Handle Most Cases 381 The Appellate Courts Hear 20 Percent of Lower-Court Cases 382 The Supreme Court Is the Court of Final Appeal 383 Judges Are Appointed by the President and Approved by the Senate 384

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 17 11/29/18 11:38 AM

xviii

The Power of the Supreme Court Is Judicial Review 385 Judicial Review Covers Acts of Congress 386

AMERICA SIDE BY SIDE Term Limits for High Court Justices 387

Judicial Review Applies to Presidential Actions 388 Judicial Review Also Applies to State Actions 389

Most Cases Reach the Supreme Court by Appeal 390 The Solicitor General, Law Clerks, and Interest Groups Also

Influence the Flow of Cases 392 The Supreme Court’s Procedures Mean Cases May Take

Months or Years 394

Supreme Court Decisions Are Influenced by Activism and Ideology 397

The Federal Courts: What Do We Want? 400 WHO PARTICIPATES? Influencing the Supreme Court? 401

Key Terms 404 For Further Reading 405

PART IV POLICY

13 ★ Domestic Policy 406

The Tools for Making Policy Are Techniques of Control 409 Promotional Policies Get People to Do Things by Giving

Them Rewards 409 Regulatory Policies Are Rules Backed by Penalties 411 Redistributive Policies Affect Broad Classes of People 413 Should the Government Intervene in the Economy? 415

Social Policy and the Welfare System Buttress Equality 416 The History of the Government Welfare System Dates Only

to the 1930s 416 The Modern Welfare System Has Three Parts 417 Welfare Reform Has Dominated the Welfare Agenda in

Recent Years 421

The Cycle of Poverty Can Be Broken by Education, Health, and Housing Policies 423

Education Policies Provide Life Tools 423 Health Policies Mean Fewer Sick Days 425

AMERICA SIDE BY SIDE U.S. Healthcare: High Cost, Poor Outcomes 427

Housing Policies Provide Residential Stability 431

Social Policy Spending Benefits the Middle Class More Than the Poor 432

Senior Citizens Receive over a Third of All Federal Dollars 433 The Middle and Upper Classes Benefit from Social Policies 434

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 18 11/29/18 11:38 AM

xix

The Working Poor Receive Fewer Benefits 434 Spending for the Nonworking Poor Is Declining 435 Minorities, Women, and Children Are Most Likely to Face Poverty 435

Domestic Policy: What Do We Want? 437 WHO PARTICIPATES? Growing Student Debt Burden 439

Key Terms 442 For Further Reading 443

14 ★ Foreign Policy 444

Foreign Policy Goals Are Related 447 Security Is Based on Military Strength 447 Economic Prosperity Helps All Nations 451 America Seeks a More Humane World 451

AMERICA SIDE BY SIDE Building Influence through International Connections 452

American Foreign Policy Is Shaped by Government and Nongovernment Actors 453

The President Leads Foreign Policy 454 The Bureaucracy Implements and Informs Policy Decisions 455 Congress’s Legal Authority Can Be Decisive 456 Interest Groups Pressure Foreign Policy Decision Makers 457

Tools of American Foreign Policy Include Diplomacy, Force, and Money 458 Diplomacy 459 The United Nations Is the World’s Congress 459 The International Monetary Structure Helps Provide Economic Stability 460 Economic Aid Has Two Sides 460 Collective Security Is Designed to Deter War 461 Military Force Is “Politics by Other Means” 462 Soft Power Uses Persuasion 463 Arbitration Resolves Disputes 463

Current Foreign Policy Issues Facing the United States 464 A Powerful China and a Resurgent Russia 464 Nuclear Proliferation in Iran and North Korea 466 Trade Policy 467 Global Environmental Policy 467

Foreign Policy and Democracy: What Do We Want? 468 WHO PARTICIPATES? Public Opinion on Security Issues 469

Key Terms 472 For Further Reading 473

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 19 11/29/18 11:38 AM

xx

Appendix

The Declaration of Independence A1

The Articles of Confederation A5

The Constitution of the United States of America A11

Amendments to the Constitution A21

The Federalist Papers A30

The Anti-Federalist Papers A38

Presidents and Vice Presidents A45

Endnotes A49 Answer Key A81 Credits A83 Glossary/Index A85

CONTENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 20 11/29/18 11:38 AM

xxi

This book has been and continues to be dedicated to dev eloping a satisfactor y response to the question more and more Americans are asking: Why should we be engaged with go vernment and politics? Through the first 11 editions, we sought to answ er this question b y making the text dir ectly relevant to the liv es of the students who would be r eading it. As a r esult, we tried to make politics inter est- ing by demonstrating that students ’ interests are at stake and that they ther efore need to take a personal, ev en selfish, interest in the outcomes of go vernment. At the same time, we realized that students needed guidance in how to become politically engaged. Beyond providing students with a core of political knowledge, we needed to show them how they could apply that knowledge as participants in the political process. The “Who Participates?” and “What You Can Do” sections in each chapter help achieve that goal.

As events from the last several years have reminded us, “what government does” inevitably raises questions about political par ticipation and political equality . The size and composition of the electorate, for example, affect who is elected to public office and what policy dir ections the go vernment will pursue. H ence, the issue of v oter ID laws became impor tant in the 2016 election, with some arguing that these laws r e- duce voter fraud and others contending that they decr ease par ticipation by poor and minority voters. Charges of Russian meddling in the 2016 election have raised questions about the integrity of the voting process. Fierce debates about the policies of the Trump administration have heightened students’ interest in politics. O ther recent events have underscored how Americans from different backgrounds experience politics. Arguments about immigration became contentious during the 2016 election as the nation once again debated the question of who is entitled to be an American a nd have a voice in determin- ing what the government does. And charges that the police often use ex cessive violence against members of minority gr oups have raised questions about whether the go vern- ment treats all Americans equally. Reflecting all of these trends, this new Twelfth Edition shows more than any other book on the market (1) how students are connected to gov- ernment, (2) why students should think critically about go vernment and politics, and (3) how Americans from different backgrounds experience and shape politics. To help us explore these themes, P rofessor Andrea Campbell has joined us as the most r ecent in a group of distinguished coauthors. P rofessor Campbell’s scholarly work focuses on the ways in which government and politics affect the lives of ordinary citizens. Among her contributions are new chapter introductions that focus on stories of individuals and how government has affected them. Many Americans, particularly the young, can have difficulty seeing the role of go vernment in their ev eryday lives. Indeed, that ’s a chief explanation of low voter participation among younger citizens. The new chapter openers profile various individuals and illustrate their interactions with government, from a rock

Preface

wtp12e_ess_ptr_ch00_fm_i-1.indd 21 11/29/18 11:38 AM

xxii

band that gets its controversial name approved by the Supreme Court (Chapter 4), to a young mother who realizes the tap water in her Flint, Michigan, home is poisoning her children after local officials switched the source (Chapter 11), to teenagers pr otesting the end of net neutrality and the internet as they hav e known it (Chapter 6). The goal of these stories is to show students in a vivid way how government and politics mean something to their daily lives.

Several other elements of the book also help show students why politics and govern- ment should matter to them. These include:

• A twenty-first-century perspective on demographic change moves beyond the book’s strong coverage of traditional civil rights content with expanded coverage of contemporary group politics.

• “Who Participates?” infographics at the end of every chapter show students how different groups of Americans participate in key aspects of politics and government. Each concludes with a “What You Can Do” section that provides students with specific, realistic steps they can take to act on what they’ve learned and get involved in politics.

• “America Side by Side” boxes in every chapter use data figures and tables to provide a comparative perspective. By comparing political institutions and behavior across countries, students gain a better understanding of how specific features of the American system shape politics.

• Up-to-date coverage, with more than 10 pages and numerous graphics on the 2016 and 2018 elections, including a five-page section devoted to analysis of these momentous elections in Chapter 8, as well as updated data, examples, and other information throughout the book.

• “What Do We Want” chapter conclusions step back and provide perspective on how the chapter content connects to fundamental questions about the American political system. The conclusions also reprise the important point made in the personal profiles that begin each chapter that government matters to the lives of individuals.

• This Twelfth Edition is accompanied by InQuizitive, Norton’s award-winning formative, adaptive online quizzing program. The InQuizitive course for We the People, Essentials Edition, guides students through questions organized around the text’s chapter learning objectives to ensure mastery of the core information and to help with assessment. More information and a demonstration are available at digital.wwnorton.com/wethepeople12ess.

We note with r egret the passing of Theodore Lowi as w ell as M argaret Weir’s decision to step do wn fr om the book. We miss them but continue to hear their v oices and to benefit from their wisdom in the pages of our book. We also continue to hope that our book will itself be accepted as a form of enlightened political action. This Twelfth Edition is another chance. It is an advancement toward our goal. We promise to keep trying.

PREFACE

wtp12e_ess_ptr_ch00_fm_i-1.indd 22 11/29/18 11:38 AM

xxiii

We are especially pleased to ackno wledge the many colleagues who had a dir ect and active role in criticism and preparation of the manuscript. Our thanks go to:

First Edition Reviewers

Sarah Binder, Brookings Institution Kathleen Gille, Office of Representative David

Bonior Rodney Hero, University of Colorado

at Boulder Robert Katzmann, Brookings Institution Kathleen Knight, University of Houston Robin Kolodny, Temple University Nancy Kral, Tomball College Robert C. Lieberman, Columbia University David A. Marcum, University of Wyoming Laura R. Winsky Mattei, State University

of New York at Buffalo Marilyn S. Mertens, Midwestern State

University Barbara Suhay, Henry Ford Community

College Carolyn Wong, Stanford University Julian Zelizer, State University of New York

at Albany

Second Edition Reviewers

Lydia Andrade, University of North Texas John Coleman, University of Wisconsin

at Madison Daphne Eastman, Odessa College Otto Feinstein, Wayne State University Elizabeth Flores, Delmar College James Gimpel, University of Maryland

at College Park Jill Glaathar, Southwest Missouri State

University Shaun Herness, University of Florida

William Lyons, University of Tennessee at Knoxville

Andrew Polsky, Hunter College, City University of New York

Grant Reeher, Syracuse University Richard Rich, Virginia Polytechnic Bartholomew Sparrow, University

of Texas at Austin

Third Edition Reviewers

Bruce R. Drury, Lamar University Andrew I. E. Ewoh, Prairie View A&M

University Amy Jasperson, University of Texas

at San Antonio Loch Johnson, University of Georgia Mark Kann, University of Southern California Robert L. Perry, University of Texas

of the Permian Basin Wayne Pryor, Brazosport College Elizabeth A. Rexford, Wharton County Junior

College Andrea Simpson, University of Washington Brian Smentkowski, Southeast Missouri State

University Nelson Wikstrom, Virginia Commonwealth

University

Fourth Edition Reviewers

M. E. Banks, Virginia Commonwealth University

Lynn Brink, North Lake College Mark Cichock, University of Texas

at Arlington

Acknowledgments

wtp12e_ess_ptr_ch00_fm_i-1.indd 23 11/29/18 11:38 AM

xxiv

Del Fields, St. Petersburg College Nancy Kinney, Washtenaw Community

College William Klein, St. Petersburg College Dana Morales, Montgomery College Christopher Muste, Louisiana State University Larry Norris, South Plains College David Rankin, State University of New York

at Fredonia Paul Roesler, St. Charles Community College J. Philip Rogers, San Antonio College Greg Shaw, Illinois Wesleyan University Tracy Skopek, Stephen F. Austin State

University Don Smith, University of North Texas Terri Wright, Cal State, Fullerton

Fifth Edition Reviewers

Annie Benifield, Tomball College Denise Dutton, Southwest Missouri State

University Rick Kurtz, Central Michigan University Kelly McDaniel, Three Rivers Community

College Eric Plutzer, Pennsylvania State University Daniel Smith, Northwest Missouri State

University Dara Strolovitch, University of Minnesota Dennis Toombs, San Jacinto College–North Stacy Ulbig, Southwest Missouri State

University

Sixth Edition Reviewers

Janet Adamski, University of Mary Hardin–Baylor

Greg Andrews, St. Petersburg College Louis Bolce, Baruch College Darin Combs, Tulsa Community College Sean Conroy, University of New Orleans Paul Cooke, Cy Fair College Vida Davoudi, Kingwood College Robert DiClerico, West Virginia University Corey Ditslear, University of North Texas Kathy Dolan, University of Wisconsin,

Milwaukee Randy Glean, Midwestern State University Nancy Kral, Tomball College Mark Logas, Valencia Community College

Scott MacDougall, Diablo Valley College David Mann, College of Charleston Christopher Muste, University of Montana Richard Pacelle, Georgia Southern University Sarah Poggione, Florida International

University Richard Rich, Virginia Tech Thomas Schmeling, Rhode Island College Scott Spitzer, California State

University–Fullerton Robert Wood, University of North Dakota

Seventh Edition Reviewers

Molly Andolina, DePaul University Nancy Bednar, Antelope Valley College Paul Blakelock, Kingwood College Amy Brandon, San Jacinto College Jim Cauthen, John Jay College Kevin Davis, North Central Texas College Louis DeSipio, University of California–Irvine Brandon Franke, Blinn College Steve Garrison, Midwestern State University Joseph Howard, University of Central Arkansas Aaron Knight, Houston Community

College Paul Labedz, Valencia Community College Elise Langan, John Jay College Mark Logas, Valencia Community College Eric Miller, Blinn College Anthony O’Regan, Los Angeles Valley College David Putz, Kingwood College Chis Soper, Pepperdine University Kevin Wagner, Florida Atlantic University Laura Wood, Tarrant County College

Eighth Edition Reviewers

Brian Arbour, John Jay College, CUNY Ellen Baik, University of Texas–Pan

American David Birch, Lone Star College–Tomball Bill Carroll, Sam Houston State University Ed Chervenak, University of New Orleans Gary Church, Mountain View College Adrian Stefan Clark, Del Mar College Annie Cole, Los Angeles City College Greg Combs, University of Texas at Dallas Cassandra Cookson, Lee College Brian Cravens, Blinn College

ACKNOWLEDGMENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 24 11/29/18 11:38 AM

xxv

John Crosby, California State University–Chico

Scott Crosby, Valencia Community College Courtenay Daum, Colorado State

University, Fort Collins Peter Doas, University of Texas–Pan American John Domino, Sam Houston State University Doug Dow, University of Texas–Dallas Jeremy Duff, Midwestern State University Heather Evans, Sam Houston State University Hyacinth Ezeamii, Albany State University Bob Fitrakis, Columbus State Community

College Brian Fletcher, Truckee Meadows

Community College Paul Foote, Eastern Kentucky University Frank Garrahan, Austin Community College Jimmy Gleason, Purdue University Steven Greene, North Carolina State

University Jeannie Grussendorf, Georgia State University M. Ahad Hayaud-Din, Brookhaven College Alexander Hogan, Lone Star College–CyFair Glen Hunt, Austin Community College Mark Jendrysik, University of North Dakota Krista Jenkins, Fairleigh Dickinson

University Carlos Juárez, Hawaii Pacific University Melinda Kovács, Sam Houston State

University Boyd Lanier, Lamar University Jeff Lazarus, Georgia State University Jeffrey Lee, Blinn College Alan Lehmann, Blinn College Julie Lester, Macon State College Steven Lichtman, Shippensburg University Fred Lokken, Truckee Meadows

Community College Shari MacLachlan, Palm Beach

Community College Guy Martin, Winston-Salem State University Fred Monardi, College of Southern Nevada Vincent Moscardelli, University of

Connecticut Jason Mycoff, University of Delaware Sugumaran Narayanan, Midwestern State

University Anthony Nownes, University of Tennessee,

Knoxville Elizabeth Oldmixon, University of North Texas

John Osterman, San Jacinto College–Central Mark Peplowski, College of Southern Nevada Maria Victoria Perez-Rios, John Jay

College, CUNY Sara Rinfret, University of Wisconsin, Green

Bay Andre Robinson, Pulaski Technical College Susan Roomberg, University of Texas at San

Antonio Ryan Rynbrandt, Collin County Community

College Mario Salas, Northwest Vista College Michael Sanchez, San Antonio College Mary Schander, Pasadena City College Laura Schneider, Grand Valley State

University Subash Shah, Winston-Salem

State University Mark Shomaker, Blinn College Roy Slater, St. Petersburg College Debra St. John, Collin College Eric Whitaker, Western Washington

University Clay Wiegand, Cisco College Walter Wilson, University of Texas at

San Antonio Kevan Yenerall, Clarion University Rogerio Zapata, South Texas College

Ninth Edition Reviewers Amy Acord, Lone Star College–CyFair Milan Andrejevich, Ivy Tech Community

College Steve Anthony, Georgia State University Phillip Ardoin, Appalachian State

University Gregory Arey, Cape Fear Community College Joan Babcock, Northwest Vista College Evelyn Ballard, Houston Community College Robert Ballinger, South Texas College Mary Barnes-Tilley, Blinn College Robert Bartels, Evangel University Nancy Bednar, Antelope Valley College Annie Benifield, Lone Star College–Tomball Donna Bennett, Trinity Valley Community

College Amy Brandon, El Paso Community College Mark Brewer, The University of Maine Gary Brown, Lone Star College–Montgomery

ACKNOWLEDGMENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 25 11/29/18 11:38 AM

xxvi

Joe Campbell, Johnson County Community College

Dewey Clayton, University of Louisville Jeff Colbert, Elon University Amanda Cook-Fesperman, Illinois Valley

Community College Kevin Corder, Western Michigan University Kevin Davis, North Central Texas College Paul Davis, Truckee Meadows Community

College Terri Davis, Lamar University Jennifer De Maio, California State

University, Northridge Christopher Durso, Valencia College Ryan Emenaker, College of the Redwoods Leslie Feldman, Hofstra University Glen Findley, Odessa College Michael Gattis, Gulf Coast State College Donna Godwin, Trinity Valley Community

College Precious Hall, Truckee Meadows

Community College Sally Hansen, Daytona State College Tiffany Harper, Collin College Todd Hartman, Appalachian State University Virginia Haysley, Lone Star College–Tomball David Head, John Tyler Community College Rick Henderson, Texas State University–San

Marcos Richard Herrera, Arizona State University Thaddaus Hill, Blinn College Steven Holmes, Bakersfield College Kevin Holton, South Texas College Robin Jacobson, University of Puget Sound Joseph Jozwiak, Texas A & M–Corpus Christi Casey Klofstad, University of Miami Samuel Lingrosso, Los Angeles Valley College Mark Logas, Valencia College Christopher Marshall, South Texas College Larry McElvain, South Texas College Elizabeth McLane, Wharton County Junior

College Eddie Meaders, University of North Texas Rob Mellen, Mississippi State University Jalal Nejad, Northwest Vista College Adam Newmark, Appalachian State University Stephen Nicholson, University of

California, Merced Cissie Owen, Lamar University Suzanne Preston, St. Petersburg College David Putz, Lone Star College–Kingwood

Auksuole Rubavichute, Mountain View College

Ronnee Schreiber, San Diego State University Ronald Schurin, University of Connecticut Jason Seitz, Georgia Perimeter College Jennifer Seitz, Georgia Perimeter College Shannon Sinegal,The University of New

Orleans John Sides, George Washington University Thomas Sowers, Lamar University Jim Startin, University of Texas at San Antonio Robert Sterken, University of Texas at Tyler Bobby Summers, Harper College John Theis, Lone Star College–Kingwood John Todd, University of North Texas Delaina Toothman, The University of Maine David Trussell, Cisco College Ronald Vardy, University of Houston Linda Veazey, Midwestern State University John Vento, Antelope Valley Community

College Clif Wilkinson, Georgia College John Wood, Rose State College Michael Young, Trinity Valley Community

College Tyler Young, Collin College

Tenth Edition Reviewers

Stephen P. Amberg, University of Texas at San Antonio

Juan F. Arzola, College of the Sequoias Thomas J. Baldino, Wilkes University Christina Bejarano, University of Kansas Paul T. Bellinger, Jr., University of Missouri Melanie J. Blumberg, California University of

Pennsylvania Matthew T. Bradley, Indiana University

Kokomo Jeffrey W. Christiansen, Seminole State

College McKinzie Craig, Marietta College Christopher Cronin, Methodist University Jenna Duke, Lehigh Carbon Community

College Francisco Durand, University of Texas at San

Antonio Carrie Eaves, Elon University Paul M. Flor, El Camino College Compton

Center Adam Fuller, Youngstown State University

ACKNOWLEDGMENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 26 11/29/18 11:38 AM

xxvii

Christi Gramling, Charleston Southern University

Sally Hansen, Daytona State College Mary Jane Hatton, Hawai’i Pacific University David Helpap, University of

Wisconsin–Green Bay Theresa L. Hutchins, Georgia Highlands College Cryshanna A. Jackson Leftwich, Youngstown

State University Ashlyn Kuersten, Western Michigan University Kara Lindaman, Winona State University Timothy Lynch, University of

Wisconsin–Milwaukee Larry McElvain, South Texas College Corinna R. McKoy, Ventura College Eddie L. Meaders, University of North Texas Don D. Mirjanian, College of Southern

Nevada R. Shea Mize, Georgia Highlands College Nicholas Morgan, Collin College Matthew Murray, Dutchess Community

College Harold “Trey” Orndorff III, Daytona State

College Randall Parish, University of North Georgia Michelle Pautz, University of Dayton Michael Pickering, University of New Orleans Donald Ranish, Antelope Valley College Glenn W. Richardson, Jr., Kutztown

University of Pennsylvania Jason Robles, Colorado State University Ionas Aurelian Rus, University of Cincinnati–

Blue Ash Robert Sahr, Oregon State University Kelly B. Shaw, Iowa State University Captain Michael Slattery, Campbell University Michael Smith, Sam Houston State University Maryam T. Stevenson, University of

Indianapolis Elizabeth Trentanelli, Gulf Coast State

College Ronald W. Vardy, University of Houston Timothy Weaver, University of Louisville Christina Wolbrecht, University of Notre

Dame

Eleventh Edition Reviewers

Maria J. Albo, University of North Georgia Andrea Aleman, University of Texas at San

Antonio

Juan Arzola, College of the Sequoias Ross K. Baker, Rutgers University Lauren Balasco, Pittsburg State University Daniel Birdsong, University of Dayton Phil Branyon, University of North Georgia Camille D. Burge, Villanova University Matthew DeSantis, Guilford Technical

Community College Sheryl Edwards, University of

Michigan–Dearborn Lauren Elliott-Dorans, University of

Toledo Heather Evans, Sam Houston State

University William Feagin, Jr., Wharton County Junior

College Glen Findley, Odessa College Heather Frederick, Slipper Rock University Jason Ghibesi, Ocean County College Patrick Gilbert, Lone Star–Tomball Rebecca Herzog, American River College Steven Horn, Everett Community College Demetra Kasimis, California State

University, Long Beach Eric T. Kasper, University of Wisconsin–Eau

Claire Jill Kirkham, Brigham Young University–

Idaho Mary Linder, Grayson County College Johnson Louie, California State University,

Stanislaus Phil McCall, Portland State University Patrick Novotny, Georgia Southern

University Carolyn Myers, Southwestern Illinois

College–Belleville Gerhard Peters, Citrus College Michael A. Powell, Frederick Community

College Robert Proctor, Santa Rosa Junior College Allen K. Settle, California Polytechnic State

University Laurie Sprankle, Community College of

Allegheny County Ryan Lee Teten, University of Louisiana

at Lafayette Justin Vaughn, Boise State University John Vento, Antelope Valley College Aaron Weinschenk, University of

Wisconsin–Green Bay Tyler Young, Collin College

ACKNOWLEDGMENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 27 11/29/18 11:38 AM

xxviii

Twelfth Edition Reviewers

Craig Albert, Augusta University Alexa Bankert, University of Georgia Nathan Barrick, University of South Florida Jeff Birdsong, Northeastern Oklahoma A&M

College Sara Butler, College of the Desert Cory Colby, Lone Star College Anthony Daniels, University of Toledo Dennis Falcon, Cerritos College Kathleen Ferraiolo, James Madison University Patrick Gilbert, Lone Star College, Tomball Matthew Green, Catholic University

of America Matt Guardino, Providence College Barbara Headrick, Minnesota State University,

Moorhead Justin Hoggard, Three Rivers Community

College John Patrick Ifedi, Howard University Cryshanna Jackson Leftwich, Youngstown

State University Douglas Kriner, Boston University Thom Kuehls, Weber State University

Jennifer Lawless, American University LaDella Levy, College of Southern Nevada Timothy Lim, California State University, Los

Angeles Sam Lingrosso, Los Angeles Valley College Mandy May, College of Southern Maryland Suzanne Mettler, Cornell University Michael Miller, Barnard College Joseph Njoroge, Abraham Baldwin

Agricultural College Michael Petri, Santa Ana College Christopher Poulios, Nassau Community

College Andrew Rudalevige, Bowdoin College Amanda Sanford, Louisiana Tech University Elizabeth Saunders, George Washington

University Kathleen Searles, Louisiana State University Matthew Snyder, Delgado Community College Steven Sylvester, Utah Valley University Linda Trautman, Ohio University Lancaster Donald Williams, Western New England

University Peter Yacobucci, Buffalo State College

We are also grateful to M elissa Michelson, of M enlo College, who contributed to the “ Who Participates?” infographics for this edition; H olley H ansen, of O klahoma State University, who contributed to the “America Side by Side” boxes.

Perhaps abo ve all, w e thank those at W. W. N orton. F or its first five editions, editor Steve Dunn helped us shape the book in countless ways. Lisa McKay contrib- uted smart ideas and a keen editorial eye to the Tenth Edition. Ann Shin carried on the Norton tradition of splendid editorial wor k on the S ixth through Ninth and Eleventh Editions. Peter Lesser br ought intelligence and dedication to the dev elopment of this Twelfth E dition. For our I nQuizitive course and other instr uctor r esources, Spencer Richardson-Jones has been an energetic and visionar y editor. Ashley H orna, Michael Jaoui, Tricia Vuong, and Anna Olcott also kept the production of the Eleventh Edition and its accompanying resources coherent and in focus. Lynne Cannon copyedited the manuscript, and our superb project editor Christine D’Antonio devoted countless hours to keeping on top of myriad details. We thank Elyse Rieder for finding new photos and our photo editor Stephanie Romeo for managing the image program. Finally, we thank Roby Harrington, the head of Norton’s college department.

Benjamin Ginsberg Caroline J. Tolbert Andrea L. Campbell

October 2018

ACKNOWLEDGMENTS

wtp12e_ess_ptr_ch00_fm_i-1.indd 28 11/29/18 11:38 AM

An Introduction to American Politics

We the People

121212 edition

ESSENTIALS

wtp12e_ess_ptr_ch00_fm_i-1.indd 1 11/29/18 11:38 AM

010101 chapter

Introduction: The Citizen and Government WHAT GOVERNMENT DOES AND WHY IT MATTERS Meet two of the nation’s youngest elected officials. Saira Blair became the young-

est member of West Virginia’s House of Delegates when she won election as

an 18-year-old college freshman. The day after her victory party in November

2014, she was back in class at West Virginia University. In May 2017, Prairie

View A&M senior Kendric D. Jones similarly achieved electoral victory, becom-

ing the youngest city council member in the state of Texas. What got Blair

and Jones involved in politics? Both had sources of political inspiration. Blair

followed in the footsteps of her father, a West Virginia state senator, who she

had accompanied to political events since childhood. Jones was inspired by

the long history of activism at Prairie View, which was founded in 1876 during

Reconstruction by some of the first African American members of the Texas

state legislature. A further spur to action was President Obama’s call in his

2017 farewell address to “grab a clipboard, get some signatures, and run for

office yourself.” Both also had strong commitments to issues. Blair believes

wtp12e_ess_ptr_ch01_002-029.indd 2 11/28/18 4:24 PM

3

Introduction: The Citizen and Government

While Americans share a belief in the values of liberty, equality, and democracy, debates rage about how to live up to those values. To advocate for their beliefs, Republican Saira Blair (left) and Democrat Kendric Jones (right)—both college students—ran for office and won. What is the citizen’s role in America’s democratic system?

in limited government, lower taxes, and Second Amendment gun rights. Jones

has a long history of working in the community, serving in student government,

and founding a mentoring program for middle-school boys.

Both Blair and Jones also believe deeply in political participation, espe-

cially that of young people. As Jones said, “The students of Prairie View A&M

University’s voices have not been heard. Since I have been here, the city has

been stagnant and has not made any progression—outside of the university.

I feel as though a young, innovative mind can push this city forward.” After

participating in a mock government program in high school, Blair saw that

young people were just as capable as lawmakers decades older: “When I saw

how capable the students were of creating . . . legislation and really getting

work done, it really made me realize that we really didn’t need to wait.”1

Blair and Jones’s experiences show that citizens are at the center of

democratic government. They ran for office because they care about public

issues and want to have a hand in shaping policy outcomes. What are you

wtp12e_ess_ptr_ch01_002-029.indd 3 11/28/18 4:24 PM

passionate about? How does government affect your everyday life and that

of your family, friends, and community? And how are differences in political

views resolved in politics? Americans hold certain values dear, including lib-

erty, equality, and democracy. In fact, if you asked Blair and Jones, they would

almost certainly agree that these are critical values to uphold. However, Blair

and Jones might emphasize one more than the other. And they might have

major disagreements about what those values mean and what the government

should do to shape and uphold them. What are your values? Do you see them

reflected in government today? What do you want government to do?

★ Define government and forms of government (pp. 5–7)

★ Describe the role of the citizen in politics (pp. 8–9)

★ Show how the social composition of the American population has changed over time (pp. 10–16)

★ Analyze whether the U.S. system of government upholds American political values (pp. 16–20)

★ Explore Americans’ attitudes toward government (pp. 20–23)

CHAPTER GOALS

4 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 4 11/28/18 4:24 PM

Government Government refers to the formal in- stitutions and pr ocedures thr ough which a territor y and its people ar e ruled. To govern is to rule. A govern-

ment may be as simple as a to wn meeting in which community members make policy and determine budgets together or as complex as the vast establishments found in many large countries today, with their extensive procedures, laws, and bureaucracies. In the history of civilization, governments have not been difficult to establish. There have been thousands of them. The hard part is establishing a govern- ment that lasts. Even more difficult is developing a stable government that promotes liberty, equality, and democracy.

DIFFERENT FORMS OF GOVERNMENT ARE DEFINED BY POWER AND FREEDOM

Governments vary in their structure, in their size, and in the way they operate. Two questions are of special importance in determining how governments differ: Who governs? And how much government control is permitted?

In some nations, government power is held by a single individual, such as a king or dictator, or by a small group of powerful individuals, such as militar y leaders or wealthy landowners. Such a system of government normally pays little attention to popular preferences; it tends to hold power by violence or the threat of violence and is referred to as an authoritarian system, meaning that the government recognizes no formal limit but may nev ertheless be restrained by the power of other social insti - tutions. A system of government in which the degree of control is even greater is a totalitarian system, where the government recognizes no formal limits on its power and seeks to absorb or eliminate other social institutions that might challenge it. Nazi Germany under A dolf Hitler and the S oviet Union under J oseph Stalin are classic examples of totalitarian rule.

In contrast, a democracy is a political system that permits citiz ens to play a significant part in the governmental process, where they are vested with the power to r ule themselv es, usually thr ough the election of key public officials. Under such a system, constitutional government is the norm, in that formal and effective limits are placed on the powers of the government. At times, an author- itarian government might bend to popular wishes, and democratic go vernments do not automatically follo w the wishes of the majority . The point, however, is that these contrasting systems of go vernment ar e based on v ery different assumptions and practices.

Americans have the good for tune to liv e in a nation in which limits ar e placed on what governments can do and how they can do it. By one measure, just 40 per- cent of the global population (those living in 86 countries) enjoy sufficient levels of political and personal freedom to be classified as living in a constitutional democracy.2 And constitutional democracies w ere unheard of befor e the modern era. P rior to

Define government and forms of government

5GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 5 11/28/18 4:24 PM

the eighteenth and nineteenth centuries, go vernments seldom sought (and rar ely received) the support of their ordinary subjects.3

Beginning in the sev enteenth centur y, in a handful of Western nations, two important changes began to take place in the character and conduct of go vern- ment. F irst, go vernments began to ackno wledge formal limits on their po wer. Second, a small number of governments began to provide the ordinary citizen with a formal v oice in public affairs—through the v ote. Obviously, the desirability of limits on go vernment and the expansion of popular influence were at the hear t of the Ameri can Revolution in 1776. “N o taxation without r epresentation” was hotly debated from the beginning of the R evolution through the adoption of the modern Constitution in 1789. But even before the Revolution, a tradition of limi- ting government and expanding citiz en participation in the political pr ocess had developed throughout western Europe. Thus, to understand how the relationship between rulers and the ruled was transformed, we must broaden our focus to take into account events in Europe as well as in America. We will divide the transforma- tion into its two separate parts. The first is the effort to put limits on government. The second is the effort to expand the influence of the people through access to government and politics.

LIMITS ON GOVERNMENTS ENCOURAGED FREEDOM

The key force behind the imposition of limits on government power was a new social class, the bourgeoisie. Bourgeoisie is a F rench wor d for “ freeman of the city,” or bourg. Being part of the bourgeoisie later became associated with being “middle class” and with involvement in commerce or industry. In order to gain a share of control of government, joining or even displacing the kings, aristocrats, and gentry who had dominated government for centuries, the bourgeoisie sought to change existing institutions—especially parliaments—into instruments of real political participation. Parliaments had existed for centuries but w ere generally controlled b y the aristocrats. The bourgeoisie embraced parliaments as means by which they could ex ert the w eight of their superior numbers and gr ow- ing economic adv antage against their aristocratic rivals. At the same time, the bourgeoisie sought to r estrain the capacity of go vernments to thr eaten these economic and political inter ests b y placing formal or constitutional limits on governmental power.

Although motivated primarily by the need to pr otect and defend their o wn in- terests, the bourgeoisie adv anced many of the principles that became the central underpinnings of individual liber ty for all citiz ens—freedom of speech, fr eedom of assembly, freedom of conscience, and freedom from arbitrary search and seizure. It is important to note here that the bourgeoisie generally did not favor democracy as we know it. They were advocates of electoral and representative institutions, but they favored property r equirements and other r estrictions so as to limit political participation to the middle and upper classes. Yet once these institutions of politics and the protection of the right to engage in politics were established, it was difficult to limit them to the bourgeoisie.

6 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 6 11/28/18 4:24 PM

EXPANSION OF PARTICIPATION IN AMERICA CHANGED THE POLITICAL BALANCE

In America, the expansion of participation to ever-larger segments of society, seen mostly in the expansion of voting rights, occurred because competing segments of the bour- geoisie sought to gain political advantage by reaching out and mobilizing the support of working- and lower-class groups that craved the opportunity to take part in politics. To be sure, excluded groups often agitated for greater participation. But seldom was such agitation, by itself, enough to secure the right to participate. Usually, expansion of voting rights resulted from a combination of pressure from below and help from above.

This pattern of suffrage expansion by gr oups hoping to deriv e some political advantage has been typical in American history. After the Civil War, one of the chief reasons that the Republican Party moved to enfranchise newly freed slaves was to use the support of the former slav es to maintain R epublican control over the defeated southern states. S imilarly, in the early tw entieth century, upper-middle-class Pro- gressives advocated women’s suffrage because they believed that women were likely to support the reforms espoused by the Progressive movement.

THE GOAL OF POLITICS IS HAVING A SAY IN WHAT HAPPENS

Expansion of participation means that more and more people have a legal right to take part in politics. Politics is an impor tant term. In its broadest sense, it refers to conflicts over the character, membership, and policies of any organization to which people belong. As Harold Lasswell, a famous political scientist, once put it, politics is the str uggle over “who gets what, when, ho w.”4 Although politics is a phenom - enon that can be found in any organization, our concern in this book is narrower. Here, politics will be used to refer only to conflicts and struggles over the leadership, structure, and policies of governments. The goal of politics, as we define it, is to have a share or a say in the composition of the government’s leadership, how the govern- ment is organized, or what its policies are going to be. Having a share is called power or influence.

Participation in politics can take many forms, including blogging and posting opinion pieces online, v oting, sending emails to go vernment officials, lobbying legis lators on behalf of particular programs, and participating in protest marches and even violent demonstrations. A system of government in which the populace selects representatives, who play a significant role in governmental decision mak- ing, is usually called a representative democracy, or republic. A system that permits citizens to vote directly on laws and policies is often called a direct democracy. At the national level, America is a representative democracy in which citizens select government officials but do not vote on legislation. Some states and cities, how- ever, have provisions for dir ect legislation through ballot initiativ e and popular referendum. In 2017, for example, v oters in Maine approved by statewide vote to expand Medicaid under the Affordable Care Act after the governor had vetoed expansion multiple times.5

7GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 7 11/28/18 4:24 PM

Citizenship Is Based on Political Knowledge and Participation

Citizen par ticipation is the hallmar k of the democratic form of go vern- ment. “G overnment b y the people ” depends on liv ely citiz en inv olve-

ment in public discussion, debate, and activity designed to impr ove the w elfare of one’s community. The very legitimacy of democratic government depends on political par ticipation, which takes a v ariety of forms, fr om the conv entional— voting, contacting elected officials, working on campaigns, making political dona - tions, attending political meetings—to the unconv entional—protesting, boycott- ing, and signing petitions.

One key ingredient for political par ticipation is political knowledge and informa- tion. Democracy functions best when citizens are informed and have the knowledge needed to participate in political debate. Indeed, our definition of citizenship derives from the ideal put forth by the ancient Greeks: enlightened political engagement.6

Citizens need political knowledge, which includes knowing the rules and strate- gies that govern political institutions and the principles on which they are based, to figure out how best to act in their own interests. For example, during the debate in 2017 about whether to repeal the Obama health care reform, one-third of Americans

Protests are a form of direct action citizens can take to influence policy outcomes. The Black Lives Matter movement used peaceful protests and marches to educate fellow citizens and lawmakers on the impact of police brutality on the African American community.

Describe the role of the citizen in politics

8 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 8 11/28/18 4:24 PM

did not know that “Obamacare” and the “Affordable Care Act” are the same thing.7 That meant that some Americans who had enrolled in “Obamacare” did not realize their access to health insurance would be affected if the ACA were repealed. Citizens need knowledge in order to assess their interests and to know when to act on them.

Effective participation requires knowledge. (It should come as no surprise, then, that people who have less knowledge of politics vote at lower rates than those with more kno wledge.) Kno wledge is the first prerequisite for achieving an incr eased sense of political efficacy.

As mor e and mor e of our social, wor kplace, and educational activities hav e migrated online, so too hav e opportunities for political kno wledge and par ticipa- tion, creating a ne w concept of “ digital citizenship.” Digital citizenship is the abil - ity to par ticipate in society online, and it is incr easingly impor tant in politics. A 2015 survey found that o ver the previous year, 65 percent of Americans had used the internet—including visiting local, state, or federal go vernment w ebsites—to find data or information about government.8 Digital citizens are more likely to be interested in politics and to discuss politics with friends, family, and coworkers than individuals who do not use online political information. They are also more likely to vote and participate in other ways in elections. I ndividuals without internet access or the skills to par ticipate in politics and the economy online ar e being left further behind. Exclusion from par ticipation online is r eferred to as the “ digital divide.” Lower-income and less educated Americans, racial and ethnic minorities, those living in rural areas, and the elderly are all less likely to have internet access.

POLITICAL EFFICACY MEANS PEOPLE CAN MAKE A DIFFERENCE

Another important trend in American views about government has been a declining sense of political efficacy, the belief that ordinary citizens can affect what government does. In 2015, 74 percent of Americans said that elected officials do not care what people like them think; in 1960, only 25 per cent felt so shut out of go vernment.9 Accompanying this sense that or dinary people cannot be hear d is a gr owing belief that government is not run for the benefit of all the people. In 2015, 76 percent of the public disagreed with the idea that the “government is really run for the benefit of all the people.”10 These views are widely shared across the age spectrum.

This widely felt loss of political efficacy is bad news for American democracy. Why bother to participate if you believe it makes no difference? Yet the belief that you can be effective is the first step needed to influence government. Research shows that the relationship between efficacy and participation is two-way: a feeling that one can make a difference leads to participation, but in addition, joining in can increase one’s feeling of efficacy. Not every effort of ordinary citizens to influence government will succeed, but without any such efforts, government decisions will be made b y a smaller and smaller circle of powerful people. Such loss of br oad popular influence over govern- ment actions undermines the key feature of American democracy: government by the people. Most people do not want to be politically activ e every day of their liv es, but it is essential to American political ideals that all citizens be informed and able to act.

9c IT I zeNSH IP IS BASeD ON POl I T IcAl KNOWleDGe AND PART Ic IPAT ION

wtp12e_ess_ptr_ch01_002-029.indd 9 11/28/18 4:24 PM

The Identity of Americans Has Changed over Time

While American democracy aims to give the people a v oice in go vern- ment, the meaning of “we the people” has changed o ver time. Who are Americans? Ov er the course of

Ameri can histor y, politicians, r eligious leaders, pr ominent scholars, and or dinary Americans hav e puzzled o ver and fought about the answ er to this fundamental question. It is not surprising that such a simple question could pr ovoke so much conflict: the American population has increased over eighty-fold, from 3.9 million in 1790, the year of the first official census, to 327 million in 2018.11 As the American population has grown, it has become more diverse in nearly every dimen- sion imaginable.12

At the time of the F ounding, when the U nited S tates consisted of 13 states arrayed along the Eastern seaboard, 81 percent of Americans counted by the census traced their roots to Europe, mostly England and northern Europe; nearly one in five were of African origin, the vast majority of whom were slaves.13 There was also an unknown number of Native Americans, not counted b y the census because the government did not consider them Americans.14

Fast-forward to 1900. The country, now stretched out across the continent, had a sharply altered racial and ethnic composition. Waves of immigrants, mainly from Europe, had boosted the population to 76 million. The black population stood at 12 per cent. R esidents who traced their origins to Latin America or Asia each accounted for less than 1 per cent of the entir e population.15 Although principally of European origin, the American population had become much more ethnically diverse as immigrants, first from G ermany, then fr om Ireland, and finally from southern and eastern Europe, made their way to the United States. The foreign-born population of the United States reached its height at 14.7 percent in 1910.16

IMMIGRATION AND INCREASING ETHNIC DIVERSITY HAVE LONG CAUSED INTENSE DEBATE

As the population gr ew mor e div erse, anxiety about Americans ’ ethnic identity mounted, and much as today, politicians and scholars argued about whether the country could absorb such large numbers of immigrants. The debate encompassed such issues as whether immigrants’ political and social values were compatible with American democracy, whether they would learn E nglish, and what diseases they might bring into the United States.

Immigrants’ religious affiliations also aroused concern. The first immigrants to the United States were overwhelmingly Protestant, many of them fleeing religious persecution. The arrival of G ermans and I rish in the mid -1800s meant incr easing numbers of Catholics, and the large -scale immigration of the early tw entieth cen- tury threatened to reduce the percentage of Protestants significantly: many eastern

Show how the social composition of the American population has changed over time

10 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 10 11/28/18 4:24 PM

European immigrants pouring into the countr y were Jewish, while the southern Europeans were mostly Catholic. A more religiously diverse country challenged the implicit Protestantism embedded in many aspects of American public life.

After World War I, Congress responded to the fears swirling around immigration with new laws that sharply limited the number of immigrants who could enter the country each year. Congress also established a new National Origins Quota System based on the nation’s population in 1890 before the wave of immigrants from eastern and southern E urope arrived.17 The new system set up a hierar chy of admissions: northern E uropean countries r eceived gener ous quotas for ne w immigrants, whereas eastern and southern E uropean countries were granted v ery small quotas. These restrictions ratcheted down the numbers of immigrants so that b y 1970 the foreign-born population in the United States reached an all-time low of 5 percent.

Official efforts to use racial and ethnic criteria to restrict the American population were not new. The very first census, as we have seen, did not count N ative Ameri- cans; in fact, Native Americans were not granted the right to vote until 1924. Most people of African descent w ere not officially citizens until 1868, when the F our- teenth Amendment to the Constitution conferred citizenship on the freed slaves.

In 1790 the federal go vernment had sought to limit the nonwhite population with a law stipulating that only fr ee whites could become naturaliz ed citizens. Not until 1870 did Congr ess lift the ban on the naturalization of nonwhites. R estric- tions applied to Asians as well. The Chinese Exclusion Act of 1882 outlawed the entry of Chinese laborers to the United States, and additional barriers enacted after World War I meant that vir tually no Asians enter ed the countr y as immigrants until 1943, when China became our ally in World War II and these provisions were

In the 1900s many immigrants entered the United States through New York’s Ellis Island, where they were checked for disease before being admitted.

11THe IDeNT I Ty Of AMeR IcANS HAS cHANGeD OVeR T IMe

wtp12e_ess_ptr_ch01_002-029.indd 11 11/28/18 4:24 PM

lifted. People of Hispanic origin do not fit simply into the American system of racial classification. In 1930, for example, the census counted people of Mexican origin as nonwhite, but it r eversed this decision a decade later . Not until 1970 did the cen - sus officially begin counting persons of Hispanic origin, noting that they could be any race. 18 As this histor y suggests, American citiz enship has always been tied to “whiteness” even as the meaning of “white” shifted over time.

WHO ARE AMERICANS TODAY?

Race and Ethnicity B y 2000 immigration had pr ofoundly transformed the nation’s racial and ethnic pr ofile once again. The primary cause was Congr ess’s decision in 1965 to lift the tight immigration r estrictions of the 1920s, a decision that r esulted, among other things, in the gr owth of the Latino population (see Figure 1.1). Census figures for 2016 sho w that the total H ispanic proportion of the population, who can be of any race, is now 17.8 percent, while the black, or African American, population is 12.7 percent of the total population. Asians make up 5.4 per cent of the population. N on-Hispanic white Americans account for 61 percent of the population—their lowest share ever. Moreover, about 3.2 percent of the population now identifies itself as of “two or mor e races.”19 Although it is only a small per centage of the population, the multiracial categor y points toward a future in which the lines separating the traditional labels of racial identification may be blurring.

In 2016, 13.5 per cent of the population was born outside the U nited States, a figure comparable to the rates of for eign-born at the turn of the pr evious cen- tury. About half of the foreign-born population came from Latin America and the Caribbean, with just o ver one -third fr om Central America (including M exico). Those born in Asia constituted the next largest group, making up 31 per cent of for eign-born r esidents. B y 2016 just 10.9 per cent of those born outside the United States came fr om Europe.20 These figures represent only legally authoriz ed immigrants, while estimates put the number of undocumented immigrants at 11.4 million, the majority of whom are from Mexico and Central America.21

Religion The new patterns of immigration combined with a number of other factors to alter the r eligious affiliations of Americans. In 1900, 80 per cent of the population was Protestant; b y 2016 only 44 per cent of Americans identi- fied themselves as Protestants.22 Catholics made up 20 per cent of the population, and Jews accounted for 2 percent. A small Muslim population had also grown, to nearly 1 percent of the population. One of the most important changes in religious affiliation during the latter half of the twentieth centur y was the per centage of people who professed no organized religion. In 2016, 23 percent of the population was not affiliated with an organized church. These changes suggest an important shift in American r eligious identity: although the U nited States thinks of itself as a “Judeo-Christian” nation—and indeed was 95 per cent Protestant, Catholic, or Jewish from 1900 to 1968—by 2016 the numbers had fallen to under 70 percent of the adult population.23

12 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 12 11/28/18 4:24 PM

Age As America grew and its population expanded and div ersified, the country’s age profile shifted with it. In 1900 only 4 percent of the population was over 65. As life expectancy increased, the number of older Americans grew with it: by 2016 nearly 15.2 percent of the population was over 65. The number of children under the age of 18 also changed; in 1900 this gr oup comprised 40.5 per cent of the American population; by 2016 it had fallen to 22.8 per cent of the population. 24 An aging

FIGURE 1.1

Immigration by Continent of Origin* Where did most immigrants come from at the start of the twentieth century? How does that compare with immigration in the twenty-first century?

*Less than 1 percent not shown.

SOURCE: Department of Homeland Security 2016 Yearbook of Immigration Statistics Table 2, November 2017, www.dhs.gov/immigration-statistics/yearbook/2016 (accessed 2/16/18). Figure shows those who have obtained “lawful permanent resident status” by continent of origin.

10

0 1900s 1910s 1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s 2000s 2010s

20

30

40

50

60

70

80

90

100%

PERCENTAGE OF IMMIGRANTS*

EuropeAsiaAmericas

AfricaOceaniaNot speci�ed

13THe IDeNT I Ty Of AMeR IcANS HAS cHANGeD OVeR T IMe

wtp12e_ess_ptr_ch01_002-029.indd 13 11/28/18 4:24 PM

population poses challenges to the U nited States. As the elderly population grows and the working-age population shrinks, ques- tions arise about how we will fund programs for the elderly such as Social Security.

Geography Ov er the nation ’s histor y, Americans hav e changed in other ways as well, moving from mostly rural settings and small to wns to large urban ar eas. B efore 1920 less than half the population liv ed in urban ar eas; today 82 per cent of Ameri - cans do.25 Critics charge that the American political system, cr eated when America was a largely rural society, underrepresents urban areas. The constitutional provision allocat - ing each state two senators, for example, overrepresents sparsely populated rural states and underr epresents urban states, wher e the population is far mor e concentrated. The American population has also shifted regionally. In the past 50 years, especially, many Americans hav e left the Northeast and Midwest and moved to the South and Southwest. As congressional seats have been reapportioned to reflect the population shift, many problems that par ticularly plague the Midwest and Northeast, such as the decline of manufacturing jobs, receive less attention in national politics.

Socioeconomic Status Americans hav e fallen into div erse economic gr oups throughout American histor y. For much of American histor y most people w ere relatively poor working people, many of them farmers. A small wealthy elite, how- ever, grew larger in the 1890s, in a period called “ the gilded age.” By 1928 nearly 25 percent of the total annual income went to the top 1 percent of earners; the top 10 percent took home 46 per cent of total annual income. After the N ew Deal in the 1930s, a large middle class took shape, and the share going to those at the top dropped sharply. By 1976 the top 1 percent took home only 9 percent of the national annual income. S ince then, ho wever, economic inequality has once again wide- ned as a tiny gr oup of super-rich has emerged. By 2015 the top 1 per cent earned 20.3 per cent of annual income, and the top 10 per cent took home almost 50 percent of the total national income.26 At the same time, the incomes of the broad middle class hav e largely stagnated (see F igure 1.2).27 And 12.7 per cent of the population r emains belo w the official poverty line. As the middle class has

Immigration remains a controversial issue in the United States. While many believe we should do more to protect our borders, others call for comprehensive immigration reform, including an easier pathway to citizenship.

14 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 14 11/28/18 4:24 PM

frayed around the edges, the numbers of poor and near poor have swelled to nearly one-third of the population.28

Population and Politics The shifting contours of the American people have regu- larly raised challenging questions about our politics and go verning arrangements. Population growth has spurr ed politically charged debates about ho w the popula - tion should be appor tioned among congressional districts and how they should be drawn. These conflicts have major implications for the representation of different regions of the country—for the balance of representation between urban and rural areas. The representation of various demographic and political gr oups may also be affected, as there is substantial evidence of growing geographic sorting of citizens by education, income, marriage rates, and party voting.29 In addition, immigration and the cultural and religious changes it entails pr ovoked heated debates 100 y ears ago and still do today. The different languages and customs that immigrants bring to the

FIGURE 1.2

Income in the United States This figure shows that while the income of most Americans has risen only slightly since 1975, the income of the richest Americans (the top 5 percent) has increased dramatically. What are some of the ways that this shift might matter for American politics? Does the growing economic gap between the richest groups and most other Americans conflict with the political value of equality?

*Dollar values are given in constant 2016 dollars, which are adjusted for inflation so that we can compare a person’s income in 1975 with a person’s income today.

SOURCE: U.S. Census Bureau, “Income and Poverty in the United States: 2016,” Table A-2, www.census.gov/ content/dam/Census/library/publications/2017/demo/P60-259.pdf (accessed 4/16/18).

Lowest fifth

Fourth fifth

Second fifth

Highest fifth

Third fifth

Top 5 percent

HOUSEHOLD INCOME (IN DOLLARS)*

1975 1980 1985 1990 1995 2015201020052000

$400,000

350,000

300,000

250,000

200,000

150,000

100,000

50,000

15THe IDeNT I Ty Of AMeR IcANS HAS cHANGeD OVeR T IMe

wtp12e_ess_ptr_ch01_002-029.indd 15 11/28/18 4:24 PM

United States trigger fears among some that the countr y is changing in ways that may undermine American v alues and alter fundamental identities. Yet a changing population has been one of the constants of American history.

America Is Built on the Ideas of Liberty, Equality, and Democracy

A fe w fundamental v alues underlie the American system. These values are reflected in such Founding docu - ments as the D eclaration of I nde- pendence, the Constitution, and

the Bill of Rights. The three v alues on which the American system of go vern- ment is based are liberty, equality, and democracy. Most Americans find it easy to affirm all three values in principle. I n practice, however, matters are not always so clear. Americans, moreover, are sometimes willing to subordinate liberty to security and have frequently tolerated significant departures from the principles of equality and democracy.

LIBERTY MEANS FREEDOM

No idea is mor e central to American values than liber ty. The Declaration of Independence defined three inalienable rights: “Life, Liber ty and the pursuit of Happiness.” The preamble to the Constitution likewise identified the need to secure “the Blessings of Liberty” as one of the key r easons for which the Constitution was drawn up. For Americans, liberty means freedom from government control as well as economic freedom. Both are closely linked to the idea of limited government, meaning that powers are defined and limited by a constitution.

The Constitution’s first 10 amendments, known collectively as the Bill of Rights, above all preserve individual personal liber ties and rights. In fact, liberty has come to mean many of the fr eedoms guaranteed in the Bill of Rights: freedom of speech and writing, the right to assemble fr eely, and the right to practice r eligious beliefs without interference from the government. Over the course of American history, the scope of personal liber ties has expanded as laws hav e become more tolerant and as individuals have successfully used the courts to challenge restrictions on their indi- vidual freedoms. Far fewer restrictions exist today on the press, political speech, and individual moral behavior than in the early y ears of the nation. E ven so, conflicts persist over how personal liber ties should be extended and when personal liber ties violate community norms.

In addition to personal freedom, the American concept of liber ty means economic freedom. Since the Founding, economic freedom has been linked to capitalism, free markets, and the pr otection of priv ate property. Free competition, the unfetter ed movement of goods, and the right to enjoy the fruits of one’s labor are all essential aspects of economic freedom and American capitalism.30 In the first century of the Republic, support for capitalism often meant support for the doctrine of laissez-faire

Analyze whether the U.S. system of government upholds American political values

16 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 16 11/28/18 4:24 PM

Global Diversity How does the racial and ethnic diversity of the United States compare to that of other countries around the world, and why are some countries more diverse than others?

As a “nation of immigrants,” the United States is more diverse than many Western countries, but some former colonies are even more diverse than the United States. Many countries in sub-Saharan Africa were colonized by empires whose governments often drew borders that encompassed multiple ethnic groups in the region. State- building and nationalism are new to these regions, meaning that local identities often remain stronger than national ones.

In contrast, many western european and Asian countries have histories of past conflict and strong state-building efforts, resulting

in less diversity either by eliminating rival groups or forcibly assimilating them. Japan’s geographic isolation has created a racially homogeneous society, which was reinforced by the government’s use of isolationism as a means to consolidate power.a Modern policies limiting immigration continue these historic trends. france has historically pursued both political and cultural assimilation, using its schools to socialize its citizens into a com- mon identity. Recent immigration, however, has highlighted potential problems with this policy.b

How might the degree of diversity shape political values in specific countries? What types of values and policies would we expect to see in countries with a high degree of diversity versus those with less diversity?

Most diverse

No data available

RACIAL AND ETHNIC DIVERSITY

Most homogeneous

aBenedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 2006), 94–99. bJohn R. Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space (Princeton, NJ: Princeton University Press, 2007).

SOURCE: Alberto Alesina, Arnaud Devleeschauwer, William Easterly, Sergio Kurlat, and Romain Wacziarg, “Fractionalization,” Journal of Economic Growth, 8 (2003): 155–94.

wtp12e_ess_ptr_ch01_002-029.indd 17 11/28/18 4:24 PM

(literally, “let do” in French), an economic system in which the means of pr oduc- tion and distribution ar e privately owned and operated for pr ofit with minimal or no government interference. Laissez-faire capitalism allowed very little r oom for the national government to regulate trade or restrict the use of private property, even in the public interest. Americans still strongly support capitalism and economic liberty, but they now also endorse some r estrictions on economic fr eedoms to protect the public. Today, federal and state go vernments deploy a wide array of r egulations in the name of public protection. These include health and safety laws, environmental rules, and workplace regulations.

Not surprisingly, fierce disagreements often erupt over what the proper scope of government regulation should be. What some people regard as protecting the pub- lic, others see as an infringement of their o wn freedom to run their businesses and use their property as they see fit.

EQUALITY MEANS TREATING PEOPLE FAIRLY

The Declaration of I ndependence declares as its first “self-evident” truth that “ all men ar e cr eated equal.” As central as it is to the American political cr eed, how- ever, equality has been a less well-defined ideal than liberty because people interpret “equality” in different ways. Most Americans share the ideal of equality of opportunity wherein all people should have the freedom to use whatever talents and wealth they have to reach their fullest potential. Yet it is hard for Americans to r each an agree- ment on what constitutes equality of oppor tunity. Must a group’s past inequalities

Economic freedom lies at the heart of many conflicts in American life. While supporters of the Tea Party movement protest against economic regulation and higher taxes and support smaller government, many Americans feel it is the government’s responsibility to regulate economic activity to benefit the majority of Americans.

18 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 18 11/28/18 4:24 PM

be remedied in order to ensure equal opportunity in the present? Should inequalities in the legal, political, and economic spheres be given the same weight? In contrast to liberty, which requires limits on the role of government, equality implies an obliga- tion of the government to the people.31

Americans do make clear distinctions betw een political equality and social or economic equality . Political equality r efers to the right to par ticipate in poli - tics equally, based on the principle of “one person, one vote.” Beginning from a very restricted definition of political community, which originally included only propertied white men, the United States has moved much closer to an ideal of political equality. Broad support for this ideal has helped expand the American political community and extend the right to par ticipate to all. Although consi- derable conflict remains over whether the political system makes it har der for some people to par ticipate and easier for others, and about whether the r ole of money in politics has drowned out the public voice, Americans agree that all citizens should hav e an equal oppor tunity to par ticipate and that go vernment should enforce that right.

In part because Americans believe that individuals are free to work as hard as they choose, they have always been less concerned about social or economic inequality . Many Americans r egard economic differences as the consequence of individual choices, vir tues, or failur es. Because of this, Americans tend to be less suppor tive than most Europeans of government action to ensure economic equality. Since the recession of 2008, ho wever, income inequality has risen on the political agenda. In 2015 two-thirds of Americans said the distribution of w ealth and money is not fair and should be mor e evenly distributed; in 2017, 63 per cent of Americans said upper-income people pay too little in tax es, and 67 per cent said corporations pay too little.32

DEMOCRACY MEANS THAT WHAT THE PEOPLE WANT MATTERS

The essence of democracy is the participation of the people in choosing their r ulers and the people ’s ability to influence what those rulers do . I n a democracy, political po wer ultimately comes fr om the people. The principle of democracy in which political authority r ests ultimately in the hands of the people is kno wn as popular sovereignty. In the U nited States, popular so ver- eignty and political equality make politicians accountable to the people. I deally, democracy envisions an engaged citiz enry pr epared to ex ercise its po wer o ver rulers. As w e noted earlier , the U nited S tates is a r epresentative democracy , meaning that the people do not rule directly but instead exercise power through elected representatives. Forms of participation in a democracy vary greatly, but voting is a key element of the r epresentative democracy that the American Founders established.

American democracy r ests on the principle of majority rule with minority rights, the democratic principle that a government follows the preferences of the major- ity of voters but protects the inter ests of the minority . Majority rule means that

19AMeRIcA IS BUIlT ON THe IDeAS Of l IBeRTy, eqUAlITy, AND DeMOcRAcy

wtp12e_ess_ptr_ch01_002-029.indd 19 11/28/18 4:24 PM

the wishes of the majority determine what government does. The House of Representatives—a large body elected dir ectly b y the people—was designed in particular to ensure majority rule. But the Founders feared that popular majori - ties could turn government into a “tyranny of the majority” in which individual liberties would be violated. Concern for individual rights has thus been a par t of American democracy fr om the beginning. The rights enumerated in the Bill of Rights and enforced through the courts provide an important check on the power of the majority.

Government Affects Our Lives Every Day Since the U nited S tates was estab - lished as a nation, Americans hav e been r eluctant to grant go vernment too much power, and they have often

been suspicious of politicians. But over the course of the nation’s history, Americans have also turned to government for assistance in times of need and hav e strongly supported the go vernment in periods of war . In 1933 the po wer of the go vern- ment began to expand to meet the crises cr eated by the stock mar ket crash of 1929, the G reat Depression, and the r un on banks. Congr ess passed legislation that brought the government into the businesses of home mortgages, farm mort- gages, credit, and relief of personal distress. More recently, when the economy fell

The federal government maintains a large number of websites that provide useful information to citizens on such topics as loans for education, civil service job applications, the inflation rate, and how the weather will affect farming. These sites are just one way in which the government serves its citizens.

Explore Americans’ attitudes toward government

20 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 20 11/28/18 4:25 PM

into a r ecession in 2008 and 2009, the federal go vernment took action to shor e up the financial system, oversee the r estructuring of the ailing auto companies, and inject hundreds of billions of dollars into the faltering economy . Today, the national government is an enormous institution with programs and policies reach- ing into every corner of American life. I t oversees the nation’s economy, it is the nation’s largest employer, it provides citizens with a host of services, it controls the world’s most formidable militar y establishment, and it r egulates a wide range of social and commercial activities.

Much of what citizens have come to depend on and take for granted—as, somehow, par t of the natural envir onment—is in fact cr eated b y go vernment. Take the example of a typical college student’s day, throughout which that student relies on a host of ser vices and activities organiz ed by national, state, and local government agencies. The extent of this dependence on government is illustrated by Table 1.1.

TRUST IN GOVERNMENT HAS DECLINED

Ironically, even as popular dependence on government has grown, the American public’s vie w of go vernment has turned mor e sour . P ublic tr ust in go vernment has declined, and Americans ar e now more likely to feel that they can do little to influence the government’s actions. Different groups vary somewhat in their levels of tr ust: African Americans and Latinos express more confidence in the federal go vernment than do whites. But even among the most supportive groups, mor e than half do not tr ust the government.33 These developments are impor tant because politically en- gaged citiz ens and public confidence in government are vital for the health of a democracy . I n the early 1960s three-quarters of Americans said they trusted government most of the time or always. B y 2017 only 18 per cent of Americans expr essed such tr ust in government.34 Trust hit a high point after the S eptember 11, 2001, terr or- ist attacks, but fell to pre-attack levels within three years, and the tr end con- tinued its do wnward path. D istrust of government greatly influenced the pr esidential primar y elections in 2015 and 2016, when a number of “outsider” candidates—most notably

While levels of participation in politics are relatively low for young Americans, the presidential primary campaigns of 2008 and 2016 saw the highest levels of youth turnout—to volunteer and to vote—in decades. What factors might have energized young people to become involved in these campaigns?

21GOVeRNMeNT AffecTS OUR l I VeS eVeRy DAy

wtp12e_ess_ptr_ch01_002-029.indd 21 11/28/18 4:25 PM

TIME SCHEDULE

7:00 a.m. Wake up. Standard time set by the national government.

7:10 a.m. Shower. Water courtesy of local government, either a public entity or a regulated private company. Brush your teeth with toothpaste whose cavity-fighting claims have been verified by a federal agency.

7:30 a.m. Have a bowl of cereal with milk for breakfast. “Nutrition facts” on food labels are a federal requirement, pasteurization of milk required by state law, recycling the empty cereal box and milk carton enabled by state or local laws.

8:30 a.m. Drive or take public transportation to campus. Air bags and seat belts required by federal and state laws. Roads and bridges paid for by state and local governments, speed and traffic laws set by state and local governments, public transportation subsidized by all levels of government.

8:45 a.m. Arrive on campus of large public university. Buildings are 70 percent financed by state taxpayers.

9:00 a.m. first class: chemistry 101. Tuition partially paid by a federal loan (more than half the cost of university instruction is paid for by taxpayers), chemistry lab paid for with grants from the National Science foundation (a federal agency).

Noon eat lunch. college cafeteria financed by state dormitory authority on land grant from federal Department of Agriculture.

2:00 p.m. Second class: American Government 101 (your favorite class!). you may be taking this class because it is required by the state legislature or because it fulfills a university requirement.

4:00 p.m. Third class: computer Science 101. free computers, software, and internet access courtesy of state subsidies plus grants and discounts from IBM and Microsoft, the costs of which are deducted from their corporate income taxes; internet built in part by federal government.

6:00 p.m. eat hamburger for dinner. Meat inspected by federal agencies.

7:00 p.m. Work at part-time job at the campus library. Minimum wage set by federal, state, or local government; books and journals in library paid for by state taxpayers.

8:15 p.m. check the status of your application for a federal student loan (fAfSA) on the Department of education’s website at studentaid.ed.gov.

10:00 p.m. Go home. Street lighting paid for by county and city governments, police patrols by city government.

10:15 p.m. Watch TV. Networks regulated by federal government, cable public- access channels required by city law. Weather forecast provided to broadcasters by a federal agency.

TABLE 1.1

The Presence of Government in the Daily Life of a Student at “State University”

22 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 22 11/28/18 4:25 PM

Donald Trump and Bernie Sanders, who were critical of go vernment and eager to depart from business as usual in Washington—attracted wide support.

Does it matter if Americans tr ust their go vernment? F or the most par t, the answer is yes. Most Americans rely on government for a wide range of ser vices and laws that they simply take for granted. B ut long-term distrust in go vernment can result in public r efusal to pay the tax es necessary to support such widely appr oved public activities. Lo w lev els of confidence may also make it difficult for govern- ment to attract talented and effective workers to public service.35 The weakening of government as a r esult of pr olonged lev els of distr ust may ultimately harm the capacity of the United States to defend its national inter est in the world economy and may jeopardize its national security. Likewise, a weak government can do little to assist citiz ens who need help in w eathering periods of sharp economic or technological change.

American Political Culture WHAT DO WE WANT? Americans express mixed views about government. Almost everyone complains about

government, and general trust in government has declined significantly. Despite mount-

ing distrust, when asked about particular government activities or programs, a majority

of Americans generally support the activities that government undertakes. These con-

flicting views reflect the tensions in American political culture: there is no perfect

balance between liberty, equality, and democracy. In recent years, finding the right mix

of government actions to achieve these different goals has become especially trouble-

some. Some charge that government initiatives designed to promote equality infringe

on individual liberty, while others point to the need for government to take action in

the face of growing inequality. Sharp political debate over competing goals alienates

many citizens, who react by withdrawing from politics. yet, in contrast to totalitarian

and authoritarian forms of government, democracy rests on the principle of popular

sovereignty. No true democracy can function properly without knowledgeable and

engaged citizens. The stories of Saira Blair and Kendric Jones at the beginning of this

chapter show that people often turn frustration with government into political action.

But running for office is only one way to participate in politics. The “Who Participates?”

feature on page 25 shows who voted in the 2016 presidential election.

The remarkable diversity of the American people represents a great strength for

American democracy as well as a formidable challenge. The shifting religious, racial,

ethnic, and immigration statuses of Americans throughout history have always pro-

voked fears about whether American values could withstand such dramatic shifts.

The changing face of America also sparks hopes for an America that embodies its

fundamental values more fully.

23AMeR IcAN POl I T IcAl cUlTURe : WHAT DO We WANT?

wtp12e_ess_ptr_ch01_002-029.indd 23 11/28/18 4:25 PM

Demographic changes will continue to raise tough new questions. for example,

as the American population grows older, programs for the elderly will take up an

increasing share of the federal budget. yet, to be successful, a nation must invest

in its young people. And, as any college student knows, the cost of college has risen

in recent years. Many students drop out as they discover that the cost of college is

too high. Or they graduate and find themselves saddled with loans that will take

decades to pay back. yet, in a world of ever-sharper economic competition, higher

education has become increasingly important for individuals seeking economic secu-

rity. Moreover, an educated population is critical to the future prosperity of the country

as a whole. Are there ways to support the elderly and the young at the same time? Is it

fair to cut back assistance to the elderly, who have worked a lifetime for their benefits?

If we decrease assistance to the elderly, will they stay in the labor market and make

the job hunt for young people even more difficult? As these trade-offs suggest, there

are no easy answers to these demographic changes.

24 CHAPTER 1 INTRODUcT ION : THe c I T I zeN AND GOVeRNMeNT

wtp12e_ess_ptr_ch01_002-029.indd 24 11/28/18 4:25 PM

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

Who Voted in 2016?

80%

College graduate Postgraduate study

Some high school Some collegeHigh school graduate

Age

Race / Ethnicity

Income Sex

Education*

18−29 30−44 45−64 65+

46% 59% 67% 71%

<$50,000

55%

$50,000−$99,999

69%

$100,000+

78%

White BlackHispanic Asian

Male

59%

Female

63%

65% 59%48% 49%

35% 63% 74%52%

*Highest level attained SOURCE: U.S. Census Bureau, Current Population Survey November 2016, census.gov (accessed 11/20/17).

WHO PARTICIPATES?

wtp12e_ess_ptr_ch01_002-029.indd 25 11/28/18 4:25 PM

Practice Quiz

1. What is the difference between a totalitarian government and an authoritarian government? (p. 5) a) Authoritarian governments require

popular participation while totalitar- ian governments do not.

b) Totalitarian governments are generally based on religion, while authoritarian governments are not.

c) Authoritarian governments are often restrained by the power of social institutions, while totalitarian governments are not.

d) Totalitarian governments acknowledge strict limits on their power, while authoritarian governments do not.

e) There is no difference between these two kinds of government.

2. In a constitutional government (p. 5) a) the government recognizes no

formal limits on its power. b) presidential elections are held

every four years. c) governmental power is held by a

single individual. d) formal and effective limits

are placed on the powers of government.

e) the government follows the wishes of the majority.

Register to vote. See page 242.

Cast your vote on Election Day. Consider encouraging others to vote too. Research shows that people are more likely to turn out to vote if a friend or family member asks them to.

Vote

Find out what’s on the ballot in upcoming elections in your state and district by entering your address at www.vote411.org (a website from the League of Women Voters).

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

26 STUDy GU IDe

wtp12e_ess_ptr_ch01_002-029.indd 26 11/28/18 4:25 PM

3. A state that permits its citizens to vote directly on laws and policies is practicing a form of (p. 7) a) representative democracy b) direct democracy c) pluralism d) laissez-faire capitalism e) republicanism

4. Political efficacy is the belief that (p. 9) a) government operates efficiently. b) government has grown too large. c) government cannot be trusted. d) ordinary citizens can influence what

government does. e) government is wasteful and corrupt.

5. What is digital citizenship? (p. 9) a) a new government initiative to

expand online voter registration b) the ability to vote online c) an online certification program

that allows immigrants to become American citizens

d) the ability to participate in society online

e) a new government initiative to pro- vide daily legislative updates online

6. The percentage of foreign-born individuals living in the United States (pp. 11–12) a) has increased significantly since

reaching its low point in 1970. b) has decreased significantly since

reaching its high point in 1970. c) has remained the same since 1970. d) has never been less than the per-

centage of native-born individuals living in the United States.

e) has not been studied since 1970.

7. In 2016, latinos were approximately what percent of the American public? (p. 13) a) 67 percent b) 52 percent c) 31 percent d) 18 percent e) 6 percent

8. Which of the following statements best describes the changes in America’s age profile since 1900? (p. 13) a) The percentage of adults over the

age of 65 has declined dramatically.

b) The percentage of adults over the age of 65 has increased dramatically.

c) The percentage of adults over the age of 65 has remained constant.

d) The percentage of children under the age of 18 has increased dramatically.

e) The percentage of children under the age of 18 has remained constant.

9. What percent of Americans live in urban areas today? (p. 14) a) less than 10 percent b) about 20 percent c) about 40 percent d) about 60 percent e) about 80 percent

10. Which of the following statements best describes the history of income inequality in the United States? (p. 14) a) The top 1 percent has never

earned more than 10 percent of the nation’s annual income.

b) The top 1 percent has never earned less than 10 percent of the nation’s annual income.

c) Income inequality has remained fairly constant since the late 1970s.

d) Income inequality has increased considerably since the late 1970s.

e) Income inequality has decreased considerably since the late 1970s.

11. The phrase “life, liberty and the pur- suit of Happiness” appears in (p. 16) a) the preamble to the constitution. b) the Bill of Rights. c) the Declaration of Independence. d) the Magna carta. e) the Gettysburg Address.

12. An economic system in which the means of production and distribution are privately owned and operated for profit with minimal or no government interference is referred to as (p. 18) a) socialism. b) communism. c) laissez-faire capitalism. d) corporatism. e) feudalism.

27STUDy GU IDe

wtp12e_ess_ptr_ch01_002-029.indd 27 11/28/18 4:25 PM

13. The principle of political equality can be best summed up as (p. 19) a) “equality of results.” b) “equality of opportunity.” c) “one person, one vote.” d) “equality between the sexes.” e) “leave everyone alone.”

14. Americans’ trust in their government (p. 21) a) has risen steadily since the

1960s. b) has remained relatively constant

since the 1960s. c) increased between 1960 and

2008 but has declined since.

d) increased after the September 11, 2001, terrorist attacks but has declined since.

e) declined after the September 11, 2001, terrorist attacks but has increased since.

Key Terms

authoritarian government (p. 5) a system of rule in which the government recognizes no formal limit but may nevertheless be restrained by the power of other social institutions

citizenship (p. 8) informed and active membership in a political community

constitutional government (p. 5) a system of rule in which formal and effective limits are placed on the powers of the government

democracy (p. 5) a system of rule that permits citizens to play a significant part in the governmental process, usually through the election of key public officials

direct democracy (p. 7) a system of rule that permits citizens to vote directly on laws and policies

equality of opportunity (p. 18) a widely shared American ideal that all people should have the freedom to use whatever talents and wealth they have to reach their fullest potential

government (p. 5) institutions and proce- dures through which a territory and its people are ruled

laissez-faire capitalism (p. 18) an economic system in which the means of production and distribution are privately owned and operated for profit with minimal or no government interference

liberty (p. 16) freedom from government control

limited government (p. 16) a principle of constitutional government; a government whose powers are defined and limited by a constitution

majority rule/minority rights (p. 19) the democratic principle that a government follows the preferences of the majority of voters but protects the interests of the minority

political efficacy (p. 9) the ability to influence government and politics

political equality (p. 19) the right to participate in politics equally, based on the principle of “one person, one vote”

political knowledge (p. 8) possessing information about the formal institutions of government, political actors, and political issues

28 STUDy GU IDe

wtp12e_ess_ptr_ch01_002-029.indd 28 11/28/18 4:25 PM

politics (p. 7) conflict over the leadership, structure, and policies of governments

popular sovereignty (p. 19) a principle of democracy in which political authority rests ultimately in the hands of the people

power (p. 7) influence over a government’s leadership, organization, or policies

Dahl, Robert. How Democratic Is the American Constitution? New Haven, cT: yale University Press, 2002.

Dalton, Russell. The Good Citizen: How a Younger Generation Is Reshaping American Politics. 2nd ed. Washington, Dc: cq Press, 2015.

Delli carpini, Michael X., and Scott Keeter. What Americans Know about Politics and Why It Matters. New Haven, cT: yale University Press, 1996.

Hochschild, Jennifer l. Facing Up to the American Dream: Race, Class, and the Soul of the Nation. Princeton, NJ: Princeton University Press, 1995.

lasswell, Harold. Politics: Who Gets What, When, How. New york: Meridian Books, 1958.

Mccarty, Nolan, Keith T. Poole, and Howard Rosenthal. Polarized America: The Dance of Ideology and Unequal Riches. cambridge, MA: MIT Press, 2008.

Mettler, Suzanne. The Submerged State: How Invisible Government Policies Undermine American Democracy. chicago: University of chicago Press, 2011.

Nye, Joseph S., Jr., Philip D. zelikow, and David c. King, eds. Why People Don’t Trust Government. cambridge, MA: Harvard University Press, 1997.

Page, Benjamin I., and lawrence R. Jacobs. Class War? What Americans Really Think about Economic Inequality. chicago: University of chicago Press, 2009.

Tocqueville, Alexis de. Democracy in America. Translated by Phillips Bradley. New york: Knopf, Vintage Books, 1945. first published 1835.

representative democracy (republic) (p. 7) a system of government in which the populace selects representatives, who play a significant role in governmental decision making

totalitarian government (p. 5) a system of rule in which the government recognizes no formal limits on its power and seeks to absorb or eliminate other social institutions that might challenge it

For Further Reading

29STUDy GU IDe

wtp12e_ess_ptr_ch01_002-029.indd 29 11/28/18 4:25 PM

020202 chapter

The Founding and the Constitution WHAT GOVERNMENT DOES AND WHY IT MATTERS One of the worries of the framers of the U.S. Constitution was the concentration

of government powers and the possible infringement on individual liberties.

One solution was to divide the executive, legislative, and judicial powers of

government across different institutions with separate powers, each checking

the other. Governmental power was further divided between the national and

state governments. Sometimes this constitutional system and its effect on

average Americans comes vividly to life.

Jim Obergefell was a real estate agent and IT consultant in Cincinnati, Ohio,

in 1992 when he met and fell in love with John Arthur.1 Although their relation-

ship would last for decades, they were unable to marry. In 1996, Congress

passed and President Clinton signed the Defense of Marriage Act (DOMA), a

federal law defining marriage as between one man and one woman. States

could still permit same-sex marriage, but the marriages would not be recognized

for fede ral purposes such as filing taxes or earning Social Security survivor bene-

fits. The law also permitted states to refuse to recognize same-sex marriages

wtp12e_ess_ptr_ch02_030-065.indd 30 11/28/18 5:28 PM

The Founding and the Constitution

From America’s founding to today, debates over the role of the United States government in citizens’ lives have persisted. After the historic decision to rule same-sex marriage a right guaranteed by the Constitution, Jim Obergefell holds a photo of his late husband on the steps of the Supreme Court to celebrate his bittersweet victory.

31

performed in other states. Then the state of Ohio enacted its own DOMA in

2004, prohibiting same-sex marriage and refusing to recognize those per-

formed elsewhere.

Thus Obergefell and Arthur were unable to marry due to the actions of two

branches of the federal government—the executive and legislative—and their

state. The issue became more acute when Arthur was diagnosed with ALS, or

Lou Gehrig’s disease—a progressive, debilitating disease. Obergefell served

as Arthur’s primary caregiver, and the couple traveled to Maryland in 2013

and wed on the airport tarmac. Then they filed a lawsuit with the state of Ohio

for Obergefell to be recognized as the surviving spouse on Arthur’s imminent

death certificate. Arthur passed away three months later.

The case made it to the Supreme Court. In 2015 the Court ruled in Obergefell

v. Hodges that the fundamental right to marry is guaranteed to same-sex

couples by the Due Process and Equal Protection Clauses of the Fourteenth

Amendment to the U.S. Constitution.2 Thus the Court secured a civil right that

the executive and legislative branches and a number of states had denied.

wtp12e_ess_ptr_ch02_030-065.indd 31 11/28/18 5:28 PM

The U.S. Constitution lays out the purpose of government: to promote justice,

to maintain peace at home, to defend the nation from foreign foes, to provide for

the welfare of the citizenry, and, above all, to secure the “blessings of liberty” for

Americans. It also spells out a plan for achieving these objectives, including provi-

sions for the exercise of legislative, executive, and judicial powers and a recipe

for the division of powers among the federal government’s branches and between

the national and state governments. Jim Obergefell’s quest to marry the love of

his life intersected with all three branches and both levels of government.

His story also shows that although many Americans believe strongly in the

long-standing values of liberty, equality, and democracy, how those values are

defined and implemented by the political institutions that the Constitution

created are a source of considerable controversy. The framers believed that a

good constitution created a government with the capacity to act forcefully. But

they also believed that government should be compelled to take a variety of

interests and viewpoints into account when it formulates policies. Sometimes

the deliberation and compromise encouraged by the constitutional arrange-

ments of “separated institutions sharing powers” can result in policymaking

that is slow or even gridlocked.3 Public policy is always a product of political

bargaining. But so was the Constitution itself. As this chapter will show, the

Constitution reflects high principle as well as political self-interest and defines

the relationship between American citizens and their government.

★ Describe the events that led to the Declaration of Independence and the Articles of Confederation (pp. 33–38)

★ Analyze the reasons many Americans thought a new Constitution was needed, and assess the obstacles to a new Constitution (pp. 38–43)

★ Explain how the Constitution attempted to improve America’s governance, and outline the major institutions established by the Constitution (pp. 43–51)

★ Present the controversies involved in the struggle for ratification (pp. 51–56)

★ Trace how the Constitution has changed over time through the amendment process (pp. 56–60)

CHAPTER GOALS

32 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 32 11/28/18 5:28 PM

The First Founding: Ideals, Interests, and Conflicts

The government created by the coun- try’s Founders was the product of British legal and political traditions, colonial experience, and ne w ideas about governance that gained currency

in the centur y befor e America br oke with B ritain. While America’s leaders w ere first and foremost practical politicians, they also read political philosophy and were influenced by the impor tant thinkers of their day , including H obbes, Locke, and Montesquieu.

The seventeenth-century British philosopher Thomas Hobbes (1588–1679) was no adv ocate of democratic go vernment, but he wr ote persuasiv ely in Leviathan about the necessity of a government authority as an antidote to human existence in a government-less state of nature, where life was “solitary, poor, nasty, brutish, and short.” He also believ ed that go vernments should hav e limits on the po wers they exercised and that political systems ar e based on the idea of “ contract theor y”— that the people of a countr y voluntarily give up some fr eedom in exchange for an ordered society. The monarchs who rule that society derive their legitimacy from this contract, not from a God-given right to rule.

Another British political thinker, John Locke (1632–1704), advanced the prin- ciples of republican government by arguing not only that monar chical power was not absolute, but that such power was dangerous and should therefore be limited. In a break with Hobbes, Locke argued that the people retain rights despite the social contract they make with the monar ch. Preserving safety in society is not enough; people’s lives, liberty, and property also require protection. Further, Locke wrote in his Second Treatise of Civil Government that the people of a countr y have a right to overthrow a government they believe to be unjust or tyrannical. This key idea shaped the thinking of the Founders, including Thomas Jefferson, the primary author of the Declaration of Independence, who said that the document was “pure Locke.” Locke adv anced the impor tant ideas of limited go vernment and consent of the governed.

Baron de la Brède et de Montesquieu (1689–1755) was a French political thinker who advocated the idea that po wer needed to be balanced b y power as a bulwar k against tyranny. The way in which this could be achieved was through the separation of governing powers. This idea was already in practice in B ritain, where legislative and executive powers were divided betw een Parliament and the monar ch. In The Spirit of the Laws , Montesquieu argued for the separation and elev ation of judicial power, which in Britain was still held by the monarch. Montesquieu did not argue for a pur e separation of po wers; rather, basic functions would be separated, but there would also be some o verlap of functions. These ideas were central in shaping the thr ee-branch system of go vernment that America ’s Founders outlined in the Constitution of 1787.

Describe the events that led to the Declaration of Independence and the Articles of Confederation

33THE F IrST FOUnD InG : IDEALS , InTErESTS , AnD COnFL ICTS

wtp12e_ess_ptr_ch02_030-065.indd 33 11/28/18 5:28 PM

NARROW INTERESTS AND POLITICAL CONFLICTS SHAPED THE FIRST FOUNDING

The American Revolution and the U.S. Constitution were outgrowths of a struggle among competing economic and political for ces within the colonies. F ive sectors of society had inter ests that were important in colonial politics: (1) N ew England merchants; (2) southern planters; (3) “royalists”—holders of royal lands, offices, and patents (licenses to engage in a profession or business activity); (4) shopkeepers, artisans, and labor ers; and (5) small farmers. Throughout the eighteenth centur y, these groups were in conflict over issues of taxation, trade, and commer ce. For the most part, however, the southern planters, the New England merchants, and the royal office and patent holders—groups that together made up the colonial elite— were able to maintain a political alliance that held in check the mor e radical forces representing shopkeepers, labor ers, and small farmers. After 1760, ho wever, b y seriously threatening the interests of New England merchants and southern plant - ers, British tax and trade policies split the colonial elite, permitting radical forces to expand their political influence, and set in motion a chain of events that culminated in the American Revolution.4

BRITISH TAXES HURT COLONIAL ECONOMIC INTERESTS

During the first half of the eighteenth century, Britain ruled its American colonies with a light hand. Evidence of British rule was hardly to be found outside the largest towns, and the enterprising colonists had found ways of ev ading most of the tax es levied by the distant B ritish government. Beginning in the 1760s, however, debts and other financial problems faced by the British government forced it to search for new revenue sources. This search rather quickly led to the Crown’s North American colonies, which, on the whole, paid remarkably little in taxes to their parent country. Much of Britain’s debt arose from the expenses it had incurr ed in defense of the colonies during the recent French and Indian War (1756–63), as well as from the continuing protection that British forces were giving the colonists from Indian attacks and that the British navy was providing for colonial shipping. Thus, during the 1760s, Great Britain sought to impose new, though relatively modest, taxes on the colonists.

Like most go vernments of the period, the B ritish regime had limited ways in which to collect revenues. In the mid-eighteenth century, governments relied mainly on tariffs, duties, and other taxes on commerce; and it was to such taxes, including the Stamp Act, that the British turned during the 1760s.

The Stamp Act and other tax es on commer ce, such as the S ugar Act of 1764, which tax ed sugar , molasses, and other commodities, most heavily affected the two groups in colonial society whose commercial interests and activities were most extensive—the New England merchants and the southern planters. U nited under the famous slogan “No taxation without representation,” the merchants and plant- ers sought to organize opposition to these new taxes. In the course of the struggle against British tax measures, the planters and mer chants broke with their royalist

34 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 34 11/28/18 5:28 PM

allies and turned to their former adv ersaries—the shopkeepers, labor ers, ar tisans, and small farmers—for help. With the assistance of these groups, the merchants and planters organized demonstrations and a bo ycott of B ritish goods that ultimately forced the Crown to rescind most of its hated new taxes.

From the perspective of the merchants and planters, this was a victorious con- clusion to their struggle with the parent country. They were anxious to end the un- rest they had helped to arouse, and they supported the British government’s efforts to restore order. Indeed, most respectable Bostonians suppor ted the actions of the British soldiers involved in the Boston Massacre (1770), when those soldiers killed five colonists while attempting to repel an angry mob moving against a government building. In their subsequent trial, the soldiers were defended by John Adams, a pillar of Boston society and a future president of the United States. Adams asserted that the soldiers’ actions were entirely justified, provoked as they were by “a motley rabble of saucy boys, negroes and mulattoes, Irish teagues and outlandish Jack tars.” All but two of the soldiers were acquitted.5

Yet political strife persisted. The more radical for ces representing shopkeepers, artisans, laborers, and small farmers, who had been mobilized and energized by the struggle over taxes, continued to agitate for political and social change. These radi- cals, whose leaders included Samuel Adams, a cousin of John Adams, asserted that British power supported an unjust political and social structure within the colonies and began to advocate an end to British rule.6

POLITICAL STRIFE RADICALIZED THE COLONISTS

The political strife within the colonies was the background for the events of 1773–74. I n 1773 the B ritish go vernment granted the politically po werful but ailing East I ndia Company a monopoly on the expor t of tea fr om Britain, elimi- nating a lucrative form of trade for colonial merchants. To add insult to injury, the East India Company sought to sell the tea directly in the colonies instead of working through the colonial mer chants. Tea was an extr emely impor tant commodity in the 1770s, and these B ritish actions posed a serious thr eat to the N ew E ngland merchants. Together with their southern allies, the mer chants once again called upon the radicals for support. The most dramatic result was the Boston Tea Party of 1773, when anti-British radicals, led by Samuel Adams (some of them “disguised” as Mohawk Indians), boarded three vessels anchored in Boston Harbor and threw the entire cargo of 342 chests of tea into the harbor.

This event was of decisiv e importance in American histor y. The merchants had hoped to for ce the B ritish government to r escind the Tea Act, but they did not support any demands beyond this one. They certainly did not seek independence from Britain. Samuel Adams and the other radicals, however, hoped to provoke the British government to take actions that would alienate its colonial suppor ters and pave the way for a rebellion. This was precisely the purpose of the Boston Tea Party, and it succeeded. B y dumping the East I ndia Company’s tea into Boston H arbor, Adams and his follo wers goaded the B ritish into enacting a number of harsh reprisals that closed the por t of Boston to commer ce, changed the pr ovincial

35THE F IrST FOUnD InG : IDEALS , InTErESTS , AnD COnFL ICTS

wtp12e_ess_ptr_ch02_030-065.indd 35 11/28/18 5:28 PM

government of M assachusetts, pr ovided for the r emoval of accused persons to Britain for trial, and, most impor tant, restricted movement to the West—further alienating the southern planters, who depended upon access to ne w western lands. These acts of retaliation confirmed the worst criticisms of British rule and helped radicalize Americans. Radicals such as Samuel Adams had been agitating for mor e violent measures against the British. But ultimately it was B ritain’s political repres- sion that fanned support for independence.

Thus, the Boston Tea Party set in motion a cy cle of provocation and retaliation that in 1774 r esulted in the conv ening of the F irst Continental Congr ess—an assembly of delegates from all parts of the colonies that called for a total boycott of British goods and, under the prodding of the radicals, began to consider the possi - bility of independence fr om British rule. The eventual result was the D eclaration of Independence.

THE DECLARATION OF INDEPENDENCE EXPLAINED WHY THE COLONISTS WANTED TO BREAK WITH GREAT BRITAIN

In 1776, mor e than a y ear after open war fare had commenced in M assachusetts, the S econd Continental Congr ess appointed a committee consisting of Thomas Jefferson of Virginia, B enjamin F ranklin of P ennsylvania, R oger S herman of Connecticut, John Adams of M assachusetts, and R obert Livingston of N ew York to draft a statement of American independence fr om British rule. The Declaration

The British helped radicalize colonists through policy decisions in the years before the Revolution. For example, Britain gave the East India Company a monopoly on the tea trade in the American colonies, which colonists feared would hurt colonial merchants’ business.

36 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 36 11/28/18 5:28 PM

of Independence, written b y Jefferson and adopted b y the S econd Conti - nental Congress, was an extraor dinary philosophical and political document. Philosophically, the D eclaration was remarkable for its assertion that certain rights, called “ unalienable rights ”— including life, liber ty, and the pursuit of happiness—could not be abridged by governments. In the world of 1776, a world in which some kings still claimed to rule by divine right, this was a dramatic statement.

Politically, the D eclaration was r e- markable because it focused on griev - ances, aspirations, and principles that might unify the various colonial groups that w ere other wise divided economi - cally, philosophically , and b y r egion. The Declaration was an attempt to identify and ar ticulate a histor y and set of principles that might help to forge national unity.7 It also explained to the rest of the world why American colo - nists w ere attempting to br eak away from Great Britain.

THE ARTICLES OF CONFEDERATION CREATED AMERICA’S FIRST NATIONAL GOVERNMENT

Having declar ed their independence, the colonies needed to establish a go vern- mental structure. In November 1777 the Continental Congress adopted the Articles of Confederation, the United States’ first written constitution. Although it was not ratified by all the states until 1781, it was the country’s operative constitution until the final months of 1788.

The Articles of Confederation were concerned primarily with limiting the powers of the central government. The central government, first of all, was based entirely in a Congress. Since it was not intended to be a po werful government, it was giv en no executive branch. Execution of its laws was to be left to the individual states. S econd, the Congress had little po wer. Its members w ere not much mor e than delegates or messengers from the state legislatures. They were chosen by the state legislatures, their salaries were paid out of the state treasuries, and they were subject to immediate recall by state authorities. In addition, each state, regardless of its size, had only a single vote.

The Congress was giv en the po wer to declar e war and make peace, to make treaties and alliances, to coin or borr ow money, and to r egulate trade with the

The purpose of the Declaration of Independence was to explain to the world why the colonists had rebelled against the British and sought self-government. Every year, Americans celebrate the signing of the Declaration on the Fourth of July.

37THE F IrST FOUnD InG : IDEALS , InTErESTS , AnD COnFL ICTS

wtp12e_ess_ptr_ch02_030-065.indd 37 11/28/18 5:28 PM

Native Americans. It could also appoint the senior officers of the U.S. Army. But it could not levy taxes or regulate commerce among the states. Moreover, the army officers it appointed had no army to serve in because the nation ’s armed forces were composed of the state militias. And in or der to amend the Ar ticles, all 13 states had to agree—a virtual impossibility. Probably the most unfortunate part of the Articles of Confederation was that the central government could not prevent one state from discriminating against other states in the quest for foreign commerce.

The relationship between the Congress and the states under the Articles of Con- federation was one in which the states r etained virtually all governmental powers. It was properly called a confederation (a system of government in which states retain sovereign authority ex cept for the po wers expressly delegated to the national go v- ernment) because, as pr ovided under Ar ticle II, “ each state r etains its so vereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Not only was there no executive, there also was no judicial authority and no other means of enforcing the Congress’s will. If there was to be any enforcement at all, the states would do it for the Congress.8

The Failure of the Articles of Confederation Made the “Second Founding” Necessary

The Declaration of Independence and the Ar ticles of Confederation were not sufficient to hold the new nation together as an independent and effective nation-state. From almost the moment of armistice

with the B ritish in 1783, mo ves were afoot to r eform and str engthen the Ar ticles of Confederation.

Competition among the states for foreign commerce posed a special prob- lem to the ne w countr y because it allo wed the E uropean po wers to play the states against one another , which not only made America seem w eak and vul - nerable abroad but also cr eated confusion on both sides of the A tlantic. At one point during the winter of 1786–87, J ohn Adams of Massachusetts, a leader in the independence str uggle, was sent to negotiate a ne w treaty with the B ritish, one that would co ver disputes left o ver from the war . The British government responded that, because the U nited S tates under the Ar ticles of Confedera - tion was unable to enfor ce existing treaties, it would negotiate with each of the 13 states separately.

At the same time, w ell-to-do Americans—in par ticular the N ew E ngland merchants and southern planters—w ere troubled by the influence that “radical” forces ex ercised in the Continental Congr ess and in the go vernments of sev er- al of the states. As a r esult of the R evolution, one key segment of the colonial

Analyze the reasons many Americans thought a new Constitution was needed, and assess the obstacles to a new Constitution

38 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 38 11/28/18 5:28 PM

elite—the royal land office, and patent holders—was stripped of its economic and political privileges. And while the pre-Revolutionary elite were weakened, the pre- Revolutionary radicals w ere better organiz ed than ev er and no w controlled such states as Pennsylvania and Rhode Island, wher e they pursued economic and political policies that str uck terr or into the hear ts of the pr e-Revolutionary political establishment. O f course, the central go vernment under the Ar ticles of Confederation was powerless to intervene.

THE ANNAPOLIS CONVENTION WAS KEY TO CALLING A NATIONAL CONVENTION

The continuation of international weakness and domestic economic turmoil led many Americans to consider whether their ne wly adopted form of go vern- ment might not alr eady require revision. In the fall of 1786, many state lead - ers accepted an invitation fr om the Virginia legislatur e for a confer ence of representatives of all the states, to be held in Annapolis, Maryland. Delegates from only five states actually attended, so nothing substantiv e could be accom - plished. Still, this conference was the first step toward what is now known as the second founding. The one positive thing that came out of the Annapolis convention was a car efully worded r esolution calling on the Congr ess to send commissioners to Philadelphia at a later time “ to devise such fur ther provisions as shall appear to them necessar y to r ender the Constitution of the F ederal Government adequate to the exigencies of the U nion.”9 But the r esolution did not necessarily imply any desire to do more than improve and reform the Articles of Confederation.

The government under the Ar ticles did enact some impor tant measur es, including the Land O rdinance of 1785 and the N orthwest Ordinance of 1787. The Land Ordinance established the principles of land surveying and landowner- ship that go verned America ’s w estward expansion, and under the N orthwest Ordinance the states agreed to surrender their western land claims, which opened the way for the admission of ne w states to the U nion. Still, the y oung nation’s political and economic position deteriorated during the 1780s, and something had to be done.

SHAYS’S REBELLION SHOWED HOW WEAK THE GOVERNMENT WAS

It is quite possible that the Constitutional Conv ention of 1787 in P hiladelphia would never have taken place at all except for a single event that occurred during the winter following the Annapolis convention: Shays’s Rebellion.

Daniel Shays, a former army captain, led a mob of farmers in a rebellion against the government of Massachusetts, which had levied heavy tax es against them. The purpose of the rebellion was to prevent foreclosures on farmers’ debt-ridden land by keeping the county courts of western Massachusetts from sitting until after the next election. A militia force, organized by the Governor of Massachusetts and privately

39FA ILUrE OF THE ArT ICLES MADE THE “SECOnD FOUnDInG” nECESSArY

wtp12e_ess_ptr_ch02_030-065.indd 39 11/28/18 5:28 PM

funded by a group of prominent merchants, dispersed the mob, but for several days in February 1787, Shays and his followers terrified the state government b y attempting to captur e the federal arsenal at S pring- field, provoking an appeal to the Congr ess to help restore order. Within a few days, the state government regained control and captur ed 14 of the r ebels. (All were eventually pardoned.) Later that year, a ne wly elected Massachusetts legislature granted some of the farmers’ demands.

George Washington summed up the effects of this incident: “I am mor tified beyond expression that in the moment of our acknowledged independence we should by our conduct v erify the pr edictions of our transatlantic foe, and r ender ourselves ridiculous and contemptible in the eyes of all Europe.”10

The Congress under the Confederation had been unable to act decisively in a time of crisis. This provided critics of the Ar ticles of Confederation with precisely the evidence they needed to push the Annapolis r esolution thr ough the Congr ess. Thus, the states w ere asked to send r epresentatives to Philadelphia to discuss constitutional r evision. Delegates were eventually sent by every state except Rhode Island.

THE CONSTITUTIONAL CONVENTION DIDN’T START OUT TO WRITE A NEW CONSTITUTION

The delegates who convened in Philadelphia in May 1787 had political strife, inter- national embarrassment, national weakness, and local rebellion fixed in their minds. Recognizing that these issues were symptoms of fundamental flaws in the Articles of Confederation, the delegates soon abandoned the plan to r evise the Articles and committed themselves to a second founding—a second, and ultimately successful, attempt to cr eate a legitimate and effective national system of government. This effort would occupy the convention for the next five months.

A Marriage of Interest and Principle For years, scholars hav e disagreed about the motives of the F ounders in Philadelphia. Among the most contr oversial views of the framers ’ motives is the “ economic interpretation” put for ward by historian Charles Beard and his disciples.11 According to Beard’s account, America’s Founders were a collection of securities speculators and property owners whose only aim was personal enrichment. From this perspectiv e, the Constitution’s lofty principles ar e little more than sophisticated masks behind which the most v enal interests sought to enrich themselves.

In 1787, Daniel Shays led a makeshift army against the federal arsenal at Springfield to protest heavy taxes levied by the Massachusetts legislature. The rebellion proved the Articles of Confederation were too weak to protect the fledgling nation.

40 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 40 11/28/18 5:28 PM

The opposing view is that the framers of the Constitution were concerned with philosophical and ethical principles. Indeed, the framers did try to devise a system of government consistent with the dominant philosophical and moral principles of the day. But, in fact, these two views belong together; the Founders’ interests were rein- forced by their principles. The convention that drafted the American Constitution was chiefly organized by the N ew England merchants and southern planters. Although the delegates representing these groups did not all hope to pr ofit personally from an increase in the value of their securities, as Beard would have it, they did hope to benefit in the br oadest political and economic sense b y breaking the po wer of their radical foes and establishing a system of go vernment more compatible with their long-term economic and political interests. Thus, the framers sought to create a new government capable of promoting commerce and protecting property from radical state legislatures and populist forces hostile to the interests of the commercial and propertied classes.

The Great Compromise The proponents of a new government fired their opening shot on M ay 29, 1787, when E dmund Randolph of Virginia offered a r esolution that proposed corrections and enlargements in the Ar ticles of Confederation. The proposal, reflecting the strong influence of James Madison, was no simple motion; rather, it provided for an entirely new government.

The portion of Randolph ’s motion that became most contr oversial was called the Virginia Plan. This plan provided for a system of r epresentation in the national legislature based upon the population of each state or the proportion of each state’s revenue contribution to the national government or both. (Randolph also pro- posed a second chamber of the legislature, to be elected by the members of the first chamber.) Since the states v aried enormously in siz e and wealth, the Virginia Plan was heavily biased in favor of the large states.

While the convention was debating the Virginia Plan, opposition to it began to mount as more delegates arrived in Philadelphia. William Paterson of New Jersey introduced a ne w resolution known as the New Jersey Plan, which called for equal state r epresentation in the national legislatur e r egardless of population. I ts main proponents were delegates from the less populous states, including D elaware, New Jersey, Connecticut, and N ew York, who asser ted that the mor e populous states, such as Virginia, Pennsylvania, North Carolina, Massachusetts, and Georgia, would dominate the ne w government if r epresentation were determined b y population. The smaller states argued that each state should be equally represented in the ne w regime regardless of the state’s population.

The issue of representation was one that thr eatened to wr eck the entir e consti- tutional enterprise. D elegates conferred, factions maneuv ered, and tempers flared. James Wilson of P ennsylvania told the small-state delegates that if they wanted to disrupt the union, they should go ahead. The separation, he said, could “never happen on better gr ounds.” S mall-state delegates w ere equally blunt. G unning Bedford of Delaware declared that the small states might, if for ced, look elsewhere for friends. “The large states,” he said, “dare not dissolve the confederation. I f they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” These sentiments were widely shared.

41FA ILUrE OF THE ArT ICLES MADE THE “SECOnD FOUnDInG” nECESSArY

wtp12e_ess_ptr_ch02_030-065.indd 41 11/28/18 5:28 PM

The union, as Luther Martin of Maryland put it, was “on the verge of dissolution, scarcely held together by the strength of a hair.”12

The outcome of this debate was the Connecticut Compromise, also kno wn as the Great Compromise. Under the terms of this compromise, in the first chamber of Congress, the House of Representatives, the representatives would be apportioned according to the population in each state. This, of course, was what delegates from the large states had sought. But in the second chamber , the Senate, each state would hav e equal representa- tion regardless of its population; this provision addressed the concerns of the small states. This compromise was not immediately satisfactory to all the delegates. Indeed, two of the most vocal members of the small-state faction, J ohn Lansing and R obert Yates of New York, were so incensed by the concession that their colleagues had made to the large-state forces that they stormed out of the convention. In the end, however, most of the delegates preferred compromise to the breakup of the Union, and the plan was accepted.

The Question of Slavery: The Three-Fifths Compromise Many of the conflicts that emerged during the Constitutional Conv ention were reflections of the funda- mental differences between the slave and the nonslave states—differences that pitted the southern planters against New England merchants. This was one example of the conflict that would later almost destroy the Republic.

More than 90 percent of the country’s slaves resided in five states—Georgia, Maryland, North Carolina, South Carolina, and Virginia—where they accounted for 30 per cent of the total population. In some places, slaves outnumbered nonslaves by as many as 10 to 1. For the Constitution to embody any principle of national supr emacy, some basic decisions would have to be made about the place of slavery in the general scheme. James Madison observed, “It seemed now to be pretty well understood that the r eal difference of interests lay, not between the large and small but betw een the northern and southern states. The institution of slavery and its consequences formed the line of discrimination.”13

The issue of slavery was the most difficult one faced by the framers, and it nearly destroyed the Union. Although some delegates believed slavery to be morally wrong, an evil and oppr essive institution that made a mocker y of the ideals and v alues espoused in the Constitution, morality was not the issue that caused the framers to support or oppose the Three-Fifths Compromise. Whatever they thought of the institution of slav ery, most delegates fr om the nor thern states opposed counting slaves in the distribution of congr essional seats. James Wilson of Pennsylvania, for example, argued that if slav es were citiz ens, they should be tr eated and counted like other citizens. If, on the other hand, they were property, then why should not other forms of property be counted toward the apportionment of representatives? But southern delegates made it clear that if the northerners refused to give in, they would never agree to the ne w government. William R. D avie of N orth Carolina heatedly asserted that the people of North Carolina would never enter the Union if slaves were not counted as part of the basis for representation. Without such agree- ment, he asserted ominously, “the business was at an end.” Even southerners such as Edmund Randolph of Virginia, who conceded that slavery was immoral, insisted on including slaves in the allocation of congr essional seats. Eventually the North and South compromised on the issue of slavery and representation. Indeed, northerners

42 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 42 11/28/18 5:28 PM

even agreed to permit a continuation of the odious slave trade until 1808 in order to keep the South in the Union. Eventually, the disparate interests of the North and the South could no longer be reconciled, and a bloody civil war was the result.

Northerners and southerners ev entually r eached agr eement thr ough the Three- Fifths Compromise. The seats in the House of Representatives would be appor tioned according to a “population” in which only thr ee-fifths of slaves would be counted. The slaves would not be allo wed to vote, of course; but the number of r epresenta- tives would be apportioned accordingly.

The Constitution Created Both Bold Powers and Sharp Limits on Power

The political significance of the Great Compromise and the Three-Fifths Compromise was to r einforce the unity of the mer cantile and planter forces that sought to cr eate a ne w government. The Great Compromise reassured those in both gr oups who

Despite the Founders’ emphasis on liberty, the new Constitution allowed slavery. In this 1792 painting, Liberty Displaying the Arts and Sciences, the books, instruments, and classical columns at the left contrast with the kneeling slaves at the right—illustrating the divide between America’s rhetoric of liberty and equality and the realities of slavery.

Explain how the Constitution attempted to improve America’s governance, and outline the major institutions established by the Constitution

43COnST ITUT IOn CrEATED BOLD POWErS AnD SHArP L IM ITS On POWEr

wtp12e_ess_ptr_ch02_030-065.indd 43 11/28/18 5:28 PM

feared that this ne w governmental framework would reduce the impor tance of their own local or regional influence. The Three-Fifths Compromise temporarily defused the rivalry between the mer chants and planters. Their unity secured, members of the alliance suppor ting the establishment of a ne w government moved to fashion a constitutional framework consistent with their economic and political interests.

In particular, the framers sought a new government that, first, would be strong enough to pr omote commerce and pr otect property from radical state legislatur es such as Rhode I sland’s. This became the constitutional basis for national control over commerce and finance and for the establishment of national judicial supremacy and the effort to construct a strong presidency. (See Table 2.1 for a comparison of the Articles of Confederation to the Constitution.) S econd, the framers sought to prevent what they saw as the threat posed by the “excessive democracy” of the state and national go vernments under the Ar ticles of Confederation. This led to such constitutional principles as a bicameral legislature (a legislativ e assembly composed of two chambers or houses), checks and balances (mechanisms through which each branch of go vernment is able to par ticipate in and influence the activities of the other branches), stagger ed terms in office with longer terms for senators, and indirect election (selection of the pr esident not b y v oters dir ectly but b y an electoral college; senators also were chosen indirectly, by state legislatures). Third, the framers, lacking the power to force the states or the public at large to accept the new form of go vernment, sought to identify principles that would help to secure support. This became the basis of the constitutional provision for dir ect popular election of r epresentatives and, subsequently , for the addition of the Bill of Rights (the first 10 amendments to the Constitution, ratified in 1791; they ensure certain rights and liber ties to the people). F inally, the framers wanted to be certain that the government they created did not pose an ev en greater threat to its citizens’ liberties and property rights than did the radical state legislatur es they feared and despised. To prevent the new government from abusing its power, the framers incorporated principles such as the separation of powers (the division of go vernmental po wer among sev eral institutions that must cooperate in de cision-making) and federalism (a system of go vernment in which po wer is divided, by a constitution, betw een a central go vernment and r egional govern- ments) into the Constitution.

THE LEGISLATIVE BRANCH WAS DESIGNED TO BE THE MOST POWERFUL

In Article I, Sections 1–7, the Constitution provides for a Congress consisting of two chambers: a House of Representatives and a Senate. Members of the House of Representatives were given two-year terms in office and were to be elected dir ectly by the people. M embers of the S enate were to be appointed b y the state legisla - tures (this was changed in 1913 by the Seventeenth Amendment, which instituted direct election of senators) for six-y ear terms. These terms were staggered so that the appointments of one-thir d of the senators would expir e every two y ears. The Constitution assigned somewhat different tasks to the House and Senate. Although the approval of each body was required for the enactment of a law, the Senate alone

44 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 44 11/28/18 5:28 PM

was given the power to ratify tr eaties and appr ove presidential appointments. The House, on the other hand, was given the sole power to originate revenue bills.

The structure of the legislativ e branch r eflected the framers’ major goals. The House of Representatives was designed to be directly responsible to the people in order to encourage popular consent for the ne w Constitution and to help enhance the po wer of the ne w go vernment. A t the same time, to guar d against “ excessive democracy,” the Constitution checks the po wer of the H ouse of R epresentatives

MAJOR PROVISIONS ARTICLES CONSTITUTION

Executive branch none President of the United States

Judiciary no federal court system. Judiciary exists only at state level.

Federal judiciary headed by the Supreme Court

Legislature Unicameral legislature with equal representation for each state. Delegates to the Congress of the Confederation were appointed by the states.

Bicameral legislature consisting of Senate and House of representatives. Each state is represented by two senators, while apportionment in the House is based on state population. Senators are chosen by the state legislatures (changed to popular election in 1913) and House members by popular election.

Fiscal and economic powers

The national government is dependent upon the states to collect taxes. The states are free to coin their own money, print paper money, and sign commercial treaties with foreign governments.

Congress given the power to levy taxes, coin money, and regulate commerce. States prohibited from coining money or entering into treaties with other nations.

Military The national government is dependent upon state militias and cannot form an army during peacetime.

The national government is authorized to maintain an army and navy.

Legal supremacy State constitutions and state law are supreme.

national Constitution and national law are supreme.

Constitutional amendment

Must be agreed upon by all states.

Must be agreed upon by three- fourths of the states.

TABLE 2.1

Comparing the Articles of Confederation and the Constitution

45COnST ITUT IOn CrEATED BOLD POWErS AnD SHArP L IM ITS On POWEr

wtp12e_ess_ptr_ch02_030-065.indd 45 11/28/18 5:28 PM

with that of the S enate, whose members w ere to be appointed b y the states for long terms rather than elected directly by the people. The purpose of this provision, accord- ing to Alexander Hamilton, was to avoid “an unqualified complaisance to every sud- den breeze of passion, or to ev ery transient impulse which the people may r eceive.”14 Staggered terms of service in the Senate, moreover, were intended to make that body even more resistant to popular pr essure. Since only one-thir d of the senators would be selected at any giv en time, the composition of the institution would be pr otected from changes in popular preferences transmitted by the state legislatures. This would prevent what James Madison called “mutability in the public councils arising fr om a rapid succession of new members.”15 Thus, the structure of the legislative branch was designed to contribute to go vernmental power, to pr omote popular consent for the new government, and at the same time to place limits on the popular political currents that many of the framers saw as a radical threat to the economic and social order.

The issues of power and consent w ere important throughout the Constitution. Section 8 of Ar ticle I specifically listed the powers of Congress, which include the authority to collect taxes, borrow money, regulate commerce, declare war, and main- tain an army and navy. By granting Congress these powers, the framers indicated very clearly that they intended the new government to be far more powerful than its pre- decessor. At the same time, by defining the new government’s most important pow- ers as belonging to Congress, the framers sought to promote popular acceptance of this critical change by reassuring citizens that their views would be fully represented whenever the government exercised its new powers.

As a fur ther guarantee to the people that the ne w government would pose no threat to them, the Constitution seems to say that any po wers not listed ar e not granted at all. Specific powers granted to Congress in the Constitution are expressed powers. But the framers intended to cr eate an activ e and powerful government, so they also included the necessar y and proper clause, sometimes known as the elastic clause, which declar ed that Congr ess could write laws needed to carr y out its expressed powers. This clause indicated that the expressed powers could be broadly interpreted as a source of strength for the national government, not a limitation on it. In response to the charge that they intended to give the national government too much power, the framers adopted language in the Tenth Amendment stipulating that powers not specifically granted by the Constitution to the federal go vernment were reserved to the states or to the people. As we will see in Chapter 3, the resulting tension between the elastic clause and the Tenth Amendment has been at the hear t of constitutional struggles between federal and state powers.

THE EXECUTIVE BRANCH CREATED A BRAND NEW OFFICE

The Articles of Confederation had not pr ovided for an ex ecutive branch, and the framers viewed this as a sour ce of w eakness, so the Constitution pr ovides for the establishment of the pr esidency in Ar ticle II. As H amilton commented, the pr esi- dential ar ticle aimed to ward “energy in the E xecutive.” I t did so in an effort to overcome the natural tendency to ward stalemate that was built into the bicameral

46 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 46 11/28/18 5:28 PM

legislature as well as into the separation of po wers among the thr ee branches. The Constitution affords the president a measure of independence from the people and from the other branches of government—particularly the Congress.

In line with the framers ’ goal of incr eased po wer to the national go vernment, the president is granted the unconditional po wer to r eceive ambassadors fr om other countries—this amounts to the po wer to “ recognize” other countries—as w ell as the power to negotiate treaties, although their acceptance requires the approval of two-thirds of the Senate. The president is also given the unconditional right to grant reprieves and pardons, except in cases of impeachment, and the powers to appoint major departmental personnel, to convene Congress in special session, and to veto congressional enactments. The veto power is formidable, but it is not absolute, since Congr ess can override it by a two-thirds vote, reflecting the framers’ concern with checks and balances.

The framers hoped to create a pr esidency that would make the federal go vern- ment rather than the states the agency capable of timely and decisive action to deal with public issues and problems. At the same time, however, the framers sought to help the presidency withstand excessively democratic pressures by creating a system of indirect rather than direct election through an electoral college.

THE JUDICIAL BRANCH WAS A CHECK ON TOO MUCH DEMOCRACY

In establishing the judicial branch in Article III, the Constitution reflects the fram- ers’ pr eoccupation with nationalizing go vernmental po wer and checking radical democratic impulses while preventing the new national government from interfer- ing with liberty and property.

Under the provisions of Article III, the framers created a court that was to be literally a supreme cour t of the U nited States and not mer ely the highest cour t of the na - tional government. The most important expression of this intention was granting the Supreme Court the power to resolve any conflicts that might emerge between federal and state laws. In particular, the Supreme Court is given the right to determine whether a power is exclusive to the national government, concurrent with the states, or exclusive to the states. In addition, the Supreme Court is assigned jurisdiction over controversies between citizens of different states. The long-term significance of this provision was that as the country developed a national economy, it came to rely increasingly on the federal judiciary, rather than on the state courts, for the resolution of disputes.

Federal judges ar e given lifetime appointments in or der to pr otect them fr om popular politics and fr om interference by the other branches. This, however, does not mean that the judiciar y remains totally impartial to political considerations or to the other branches, for the president is to appoint the judges and the Senate to approve the appointments. Congr ess also has the po wer to cr eate inferior (lo wer) courts, change the jurisdiction of the federal cour ts, add or subtract federal judges, and even change the size of the Supreme Court.

No explicit mention is made in the Constitution of judicial review, the power of the courts to r eview and, if necessar y, declare actions of the legislativ e and ex ecu- tive branches inv alid or unconstitutional. The Supreme Court asserted this po wer

47COnST ITUT IOn CrEATED BOLD POWErS AnD SHArP L IM ITS On POWEr

wtp12e_ess_ptr_ch02_030-065.indd 47 11/28/18 5:28 PM

in Marbury v. Madison (1803). 16 Its assumption of this po wer, as w e shall see in Chapter 12, was based not on the Constitution itself but on the politics of later decades and the membership of the Court.

NATIONAL UNITY AND POWER SET THE NEW CONSTITUTION APART FROM THE OLD ARTICLES

Various provisions in the Constitution addr ess the framers ’ concern with national unity and power, including Ar ticle IV’s provisions for comity (r eciprocity) among states and among citizens of all states. Each state is pr ohibited from discriminating against the citizens of other states in favor of its own citizens, and the Supreme Court is charged with deciding in each case whether a state has discriminated against goods or people from another state. The Constitution restricts the power of the states in favor of ensuring enough po wer to the national go vernment to give the countr y a free-flowing national economy.

The framers’ concern with national supremacy was also expressed in Article VI, in the supremacy clause, which pr ovides that national laws and tr eaties “shall be the supreme Law of the Land” and superior to all laws adopted by any state or any subdivi- sion. This means that states are expected to respect all laws made under the “Authority of the United States.” The supremacy clause also binds the officials of all state and local governments as well as the federal government to take an oath of office to support the national Constitution. This means that every action taken by the U.S. Congress has to be applied within each state as though the action were in fact state law.

THE CONSTITUTION ESTABLISHES THE PROCESS FOR AMENDMENT

The Constitution establishes procedures for its o wn revision in Ar ticle V. Its provi- sions are so difficult that the document has been successfully amended only 17 times since 1791, when the first 10 amendments were adopted. Thousands of other amend- ments have been proposed in Congress, but fewer than 40 of them hav e even come close to fulfilling the Constitution’s requirement of a two-thirds vote in Congress.

THE CONSTITUTION SETS FORTH RULES FOR ITS OWN RATIFICATION

The rules for the ratification of the Constitution are set for th in Ar ticle VII. Nine of the 13 states have to ratify, or agree to, the terms in order for the Constitution to be formally adopted.

THE CONSTITUTION LIMITS THE NATIONAL GOVERNMENT’S POWER

As we have indicated, although the framers sought to create a powerful national government, they also wanted to guar d against possible misuse of that po wer. To that end, the framers incorporated two key principles into the Constitution: the

48 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 48 11/28/18 5:28 PM

separation of po wers and federalism. A thir d set of limitations, the B ill of Rights, was added to the Constitution in the form of 10 amendments pr oposed b y the first Congress and ratified by the states in 1791. Most of the framers had thought a Bill of Rights to be unnecessar y but accepted the idea during the debates o ver the Constitution’s ratification.

The Separation of Powers No principle of politics was more widely shared at the time of the 1787 Founding than the principle that po wer must be used to balance power. As mentioned earlier in the chapter , M ontesquieu believ ed that this balance was an indispensable defense against tyranny . His writings, especially his major work, The Spirit of the Laws , “were taken as political gospel” at the Philadel- phia convention.17 Although the principle of the separation of po wers is not expli - citly stated in the Constitution, the entir e structure of the national go vernment is built precisely on Article I (the legislature), Article II (the executive), and Article III (the judiciary; see Figure 2.1).

However, separation of powers is nothing but mere words on parchment without a method to maintain that separation. The method became known by the popular label

FIGURE 2.1

The Separation of Powers

Enforces laws

Commander in chief of armed forces

Makes foreign treaties

Proposes laws

Appoints Supreme Court justices and federal

court judges

Pardons those convicted in federal court

Passes federal laws

Controls federal appropriations

Approves treaties and presidential

appointments

Regulates interstate commerce

Establishes lower court system

Decides constitutionality of laws

Reviews lower court decisions

Decides cases involving disputes between states

EXECUTIVELEGISLATIVE JUDICIAL

49COnST ITUT IOn CrEATED BOLD POWErS AnD SHArP L IM ITS On POWEr

wtp12e_ess_ptr_ch02_030-065.indd 49 11/28/18 5:28 PM

“checks and balances” (see Figure 2.2). Each branch is given not only its own powers but also some po wer over the other two branches. Among the most familiar checks and balances are the president’s veto as a power over Congress and Congress’s power over the president through its control of appointments to high executive posts and to the judiciary. Congress also has power over the president with its control of appropri- ations (the spending of go vernment money) and the right of appr oval of treaties (by the Senate). The judiciary has the power of judicial review over the other two branches.

Another impor tant featur e of the separation of po wers is the principle of giving each of the branches a distinctly different constituency. Theorists such as Montesquieu called this a “mixed regime,” with the pr esident chosen indirectly by electors, the House by popular vote, the Senate (originally) by state legislature, and the judiciary by presidential appointment. B y these means, the occupants of each branch would tend to dev elop very different outlooks on ho w to govern, different definitions of the public interest, and different alliances with private interests.

Federalism Compared to the confederation principle of the Ar ticles of Confede - ration, federalism was a step to ward greater centralization of po wer. The delegates

FIGURE 2.2

Checks and Balances

EXECUTIVE

LEGISLATIVE

JUDICIAL

Legislative over Judicial Can change size of federal court

system and the number of Supreme Court justices

Can propose constitutional amendments

Can reject Supreme Court nominees

Can impeach and remove federal judges

Legislative over Executive Can override presidential veto

Can impeach and remove president

Can reject president’s appointments and refuse to ratify treaties

Can conduct investigations into president’s actions

Can refuse to pass laws or to provide funding that president

requests

Judicial over Executive Can declare executive actions

unconstitutional

Power to issue warrants

Chief justice presides over impeachment of president

Judicial over Legislative

Can declare laws unconstitutional

Chief justice presides over Senate during hearing to impeach

the president

Executive over Legislative Can veto acts of Congress

Can call Congress into a special session

Carries out, and thereby interprets, laws passed by Congress

Vice president casts tie-breaking vote in the Senate

Executive over Judicial Nominates Supreme Court

justices

Nominates federal judges

Can pardon those convicted in federal court

Can refuse to enforce Court decisions

50 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 50 11/28/18 5:28 PM

agreed that they needed to place mor e power at the national lev el, without com - pletely undermining the power of the state go vernments. Thus, they devised a sys- tem of two sovereigns—the states and the nation—with the hope that competition between the two would be an effective limitation on the power of both.

The Bill of Rights Late in the Philadelphia convention of 1787, a motion was made to include a list of citizens’ rights in the Constitution. After a brief debate in which hardly a word was said in its fav or and only one speech was made against it, the motion was almost unanimously defeated. M ost delegates sincer ely believed that since the federal go vernment was alr eady limited to its expr essed powers, fur ther protection of citiz ens was not needed. The delegates argued that the states should adopt bills of rights because their gr eater powers needed gr eater limitations. B ut almost immediately after the Constitution was ratified, there was a mo vement to adopt a national bill of rights. This is why the Bill of Rights, adopted in 1791, comprises the first 10 amendments to the Constitution rather than being part of the body of it. ( We will hav e a good deal mor e to say about the B ill of Rights in Chapter 4.)

Ratification of the Constitution Was Difficult

The first hurdle facing the pr oposed Constitution was ratification by state conventions of delegates elected b y the people of each state. This struggle

for ratification was carried out in 13 separate campaigns. Each involved different people, moved at a different pace, and was influenced by local and national con- siderations. Two sides faced off throughout the states, however; the two sides called themselves Federalists and Antifederalists (see Table 2.2).

The Federalists (who mor e accurately should hav e called themselv es “National- ists” but who took their name to appear to follo w in the R evolutionary tradition) supported the constitution proposed at the American Constitutional Convention of 1787 and preferred a strong national government. The Antifederalists favored strong state governments and a w eak national go vernment and opposed the document produced at the Constitutional Convention. They preferred a federal system of gov- ernment that was decentraliz ed; they took their name b y default, in r eaction to their better-organized opponents. The Federalists were united in their suppor t of the Constitution, while the Antifederalists were divided over possible alternatives to the Constitution.

During the str uggle o ver ratification of the Constitution, Americans argued about great political principles. How much power should the national government be given? What safeguards would most likely pr event the abuse of po wer? What institutional arrangements could best ensure adequate representation for all Ameri- cans? Was tyranny to be feared more from the many or from the few?

Present the controversies involved in the struggle for ratification

51rAT I F ICAT IOn OF THE COnST I TUT IOn WAS D I F F ICULT

wtp12e_ess_ptr_ch02_030-065.indd 51 11/28/18 5:28 PM

FEDERALISTS AND ANTIFEDERALISTS FOUGHT BITTERLY OVER THE WISDOM OF THE NEW CONSTITUTION

During the ratification struggle, thousands of essays, speeches, pamphlets, and let- ters were written in support of and in opposition to the proposed Constitution. The best-known pieces suppor ting ratification of the Constitution were the 85 essays written, under the name of “P ublius,” by Alexander H amilton, James Madison, and John Jay between the fall of 1787 and the spring of 1788—known today as the Federalist Papers. They not only defended the principles of the Constitution but also sought to dispel fears of a strong national authority. The Antifederalists published essays of their own, arguing that the new Constitution betrayed the Revolution and was a step toward monarchy. Among the best of the Antifederalist wor ks were the essays, usually attributed to N ew York Supreme Court justice R obert Yates, that were written under the name of “Brutus” and published in the New York Journal at the same time the Federalist Papers appeared. The Antifederalist view was also ably presented in the pamphlets and letters written b y a former delegate to the Con - tinental Congress and futur e U.S. senator, Richard Henry Lee of Virginia, using the pen name “The Federal Farmer.” These essays highlight the major differences of opinion betw een Federalists and Antifederalists. F ederalists appealed to basic principles of government in support of their nationalist vision. Antifederalists cited equally fundamental precepts to support their vision of a looser confederacy of small republics. Three areas of disagreement were representation, majority tyranny, and governmental power.

FEDERALISTS ANTIFEDERALISTS

Who were they? Property owners, creditors, merchants

Small farmers, frontiersmen, debtors, shopkeepers, some state government officials

What did they believe?

Believed that elites were most fit to govern; feared “excessive democracy”

Believed that government should be closer to the people; feared concentration of power in hands of the elites

What system of government did they favor?

Favored strong national government; believed in “filtration” so that only elites would obtain governmental power

Favored retention of power by state governments and protection of individual rights

Who were their leaders?

Alexander Hamilton, James Madison, George Washington

Patrick Henry, George Mason, Elbridge Gerry, George Clinton

TABLE 2.2

Federalists versus Antifederalists

52 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 52 11/28/18 5:28 PM

Representation The Antifederalists believed that the best and most r epresentative government was closest to the people, what we would think of as local and state governments. These smaller, more homogeneous governing units would provide “a true picture of the people . . . [possessing] the knowledge of their circumstances and their wants.”18 A strong national government could not represent the interests of the nation as effectively, the Antifederalists argued, because the nation as a whole was simply too large and diverse.

The Federalists, on the other hand, thought that some distance between the peo- ple and their representatives might be a good thing because it would encourage the selection of a fe w talented and experienced r epresentatives to ser ve in a national legislature who could balance the wishes of the people with their o wn considered judgment. In James Madison’s view, representatives would not simply mirr or soci- ety; rather, they must be “[those] who possess [the] most wisdom to discern, and [the] most virtue to pursue, the common good of the society.”19

Tyranny Both Federalists and Antifederalists feared tyranny, oppressive and unjust government that employs cruel and arbitrary use of power and authority. But each painted a different picture of what kind of tyranny to fear.

The Antifederalists feared that tyranny would arise fr om the tendency of all go vernments to become mor e “ aristocratic,” wher ein a fe w individuals in positions of authority would use their positions to gain mor e and mor e power over the people. F or this r eason, Antifederalists w ere sharply critical of those features of the Constitution that limited dir ect popular influence over the government, including the election of senators by state legislatures, election of the pr esident by the electoral college, and selection of federal judges b y the president and the S enate. Judges, who are appointed for life, w ere seen as an especially dire threat: “I wonder if the world ever saw . . . a court of justice invested with such immense po wers, and y et placed in a situation so little r esponsible,” protested Brutus.20

For the Federalists, tyranny in a republic was less likely to come from aristocrats and more likely to come fr om the majority . They feared that a popular majority , “united and actuated b y some common impulse of passion, or of inter est, adverse to the rights of other citizens,” would attempt to “trample on the rules of justice.”21 Those features of the Constitution opposed by the Antifederalists were the very ones that the F ederalists defended as the best hope of av oiding tyranny. The sheer size and diversity of the American nation, as represented in the two houses of Congress, would provide a built-in set of balances that would for ce competing inter ests to moderate and compromise.

Governmental Power A thir d difference betw een Federalists and Antifederalists was over the matter of go vernmental power. Both sides agr eed on the principle of limited government, meaning a government whose powers are defined and limited by a constitution; but they differed on how best to limit the government.

Antifederalists wanted the po wers of the national go vernment to be car efully specified and limited. Otherwise, the federal government would “swallow up all the

53rAT I F ICAT IOn OF THE COnST I TUT IOn WAS D I F F ICULT

wtp12e_ess_ptr_ch02_030-065.indd 53 11/28/18 5:28 PM

power of the state go vernments.” Antifederalists bitterly attacked the supr emacy clause and the elastic clause of the Constitution, saying that these pr ovisions gave the national government dangerously unlimited grants of power. They also insisted that a bill of rights be added to the Constitution to place limits on the government’s power over citizens.

Federalists favored a national go vernment with br oad powers to defend the nation from foreign threats, guard against domestic strife and insurrection, pro- mote commerce, and expand the nation’s economy. Federalists agreed that such power could be abused but believ ed that the best safeguar d against such abuse was thr ough the Constitution ’s internal checks and contr ols, not b y keeping the national go vernment weak. As Madison put it, “The power surrendered by the people is first divided between two distinct governments [federal and state], and then the por tion allotted to each subdivided among distinct and separate departments. H ence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”22 The Federalists considered a bill of rights to be unneces - sary, although this Antifederalist demand was eventually embraced by Federalists, including Madison.

Debates over how much power the national government should have continue today. After the San Bernardino shooting in 2015, the FBI demanded Apple unlock the perpetrator’s iPhone for details into his criminal activity. Here, a group protests the FBI’s infringement on the right to privacy.

54 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 54 11/28/18 5:28 PM

There is tremendous variation across the world’s democracies. All democracies possess some form of an executive, a legislature, and a judiciary; but the amount of power that each branch has varies. note that in some systems, no one branch has

very much power. In the United States, that is because of the system of checks and balances among the branches. Israel and the United Kingdom, which lack written constitutions, have branches with even less power than in the United States.

Comparing Systems of Government

COUNTRY WRITTEN

CONSTITUTION?

FEDERAL OR

UNITARY SYSTEM

STRENGTH OF

EXECUTIVE STRENGTH OF LEGISLATURE

JUDICIAL INDEPENDENCE

Brazil Yes Federal High Medium High

France Yes Unitary High Low Low

India Yes Federal Medium Low Medium

Israel no Unitary Low Low Medium

South Africa

Yes Unitary Medium Low High

Tunisia Yes Unitary High Medium Low

United States

Yes Federal Low Medium High*

United Kingdom

no Unitary High* Low Medium

*Although the Comparative Constitutions Project classifies the formal powers of both the American presidency and the judicial branch, as originally provided for in the Constitution, as relatively weak, we have classified both here as strong, based on the greater powers that have developed over time. SOURCE: Comparative Constitutions Project, “CCP Rankings,” http://comparativeconstitutionsproject.org/ccp-rankings/ (accessed 7/16/15).

wtp12e_ess_ptr_ch02_030-065.indd 55 11/28/18 5:28 PM

BOTH FEDERALISTS AND ANTIFEDERALISTS CONTRIBUTED TO THE SUCCESS OF THE NEW SYSTEM

In general, the F ederalist vision of America triumphed. The Constitution adopted in 1789 creates the frame work for a powerful national government that for more than 200 years has defended the nation’s inter ests, pr omoted its commer ce, and maintained national unity. In one notable instance, the national government fought and won a bloody war to pr event the nation from breaking apart. And despite this powerful government, the system of internal checks and balances has functioned reasonably well, as the F ederalists predicted, to pr event the national go vernment from tyrannizing its citizens.

Although they were defeated in 1788, the Antifederalists present us with an im- portant picture of a road not taken and of an America that might have been. Would Americans in the eighteenth century have been worse off if they had been governed by a confederacy of small republics linked by a national administration with severely limited powers? Were the Antifederalists corr ect in pr edicting that a go vernment given great power in the hope that it might do good would, thr ough “insensible progress,” inevitably turn to evil purposes?

Changing the Constitution The Constitution has endured for more than two centuries as the frame- work of go vernment because it has changed over time.

AMENDMENTS: MANY ARE CALLED; FEW ARE CHOSEN

The inevitable need for change was recognized by the framers of the Constitution, and the provisions for amendment (a change added to a bill, law, or constitution) were incorporated into Article V. The Constitution has proven to be extremely difficult to amend. Since 1789, mor e than 11,000 amendments hav e been formally offered in Congress. Of these, Congress officially proposed only 29, and 27 of these w ere even- tually ratified by the states.

Four methods of amendment are provided for in Article V:

1. Passage in House and Senate by two-thirds vote, then ratification by majority vote of the legislatures of three-fourths (now 38) of the states.

2. Passage in House and Senate by two-thirds vote, then ratification by conven- tions called for the purpose in three-fourths of the states.

3. Passage in a national convention called by Congress in response to petitions by two-thirds of the states, then ratification by majority vote of the legislatures of three-fourths of the states.

4. Passage in a national convention, as in method 3, then ratification by conven- tions called for the purpose in three-fourths of the states.

Trace how the Constitution has changed over time through the amendment process

56 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 56 11/28/18 5:28 PM

Figure 2.3 illustrates each of these possible methods. S ince no amendment has ev er been proposed by national convention, routes 3 and 4 have never been employed. And route 2 has only been employed once (the Twenty-First Amendment, which repealed the Eighteenth Amendment, or Prohibition). Thus, route 1 has been used for all the others.

Now it should be clear why it has been so difficult to amend the Constitution. The requirement of a two-thirds vote in the House and the Senate means that any propos- al for an amendment in Congress can be killed by only 34 senators or 136 members of the House. What is more, if the necessary two-thirds vote is obtained, the amend- ment can still be killed by the refusal or inability of only 13 out of 50 state legislatures to ratify it. S ince each state has an equal v ote regardless of its population, the 13 holdout states may represent a very small fraction of the total American population.

THE AMENDMENT PROCESS REFLECTS “HIGHER LAW”

Most efforts to amend the Constitution hav e failed because they w ere simply attempts to use the Constitution as an alternativ e to legislation for dealing dir ectly with a specific public problem. Successful amendments, on the other hand, ar e concerned with the str ucture or composition of go vernment (see Table 2.3; the

FIGURE 2.3

Four Ways the Constitution Can Be Amended *This method of proposal has never been employed. Thus, amendment routes 3 and 4 have never been attempted. **For each amendment proposal, Congress has the power to choose the method of ratification, the time limit for consideration by the states, and other conditions of ratification. The movement to repeal Prohibition in the Twenty-First Amendment was the only occasion in which route 2 was used successfully.

The National Level: Proposal of

Amendments

Method 1

Method 2

Method 3

Method 4

The State Level: Rati�cation of Amendments

C** Acceptance by

majority vote in the legislatures of

three-fourths of the states (38 states)

D** Acceptance by

conventions called for the purpose in

three-fourths of the states (38 states)

B* Passage in a national convention called by

Congress in response to petitions by two-thirds of the

states (34 states)

A Passage in House

and Senate, each by two-thirds vote

57CHAnG InG THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 57 11/28/18 5:28 PM

AMENDMENT PURPOSE

I Congress is not to make any law establishing a religion or abridging free exercise of religion, speech, press, assembly, or petitioning the government for redress of grievances.

II, III, IV no branch of government may infringe on the right of people to keep arms (II), is not arbitrarily to occupy homes for a militia (III), and is not to engage in the search or seizure of evidence without a court warrant swearing to belief in the probable existence of a crime (IV).

V, VI, VII, VIII The courts* are not to hold trials for serious offenses without provision for a grand jury (V), a petit (trial) jury (VII), a speedy trial (VI), presentation of charges (VI), confrontation of hostile witnesses (VI), immunity from testimony against oneself (V), and immunity from more than one trial for the same offense (V). neither bail nor punishment can be excessive (VIII), and no property can be taken without just compensation (V).

IX, X Limits on National Government: All rights and powers not enumerated are reserved to the states or the people.

XI Limited jurisdiction of federal courts over suits involving the states.

XII Provided separate ballot for vice president in the electoral college.

XIII Eliminated slavery and eliminated the right of states to allow property in persons.**

XIV Asserted the principle of national citizenship and prohibited the states from infringing upon the rights of citizens of the nation, no matter that they happened to live in that state. Also prohibited states from denying voting rights to male citizens over the age of 21.†

XV Extended voting rights to all races.

XVI Established national power to tax incomes.

XVII†† Provided direct election of senators.

XIX Extended voting rights to women.

XX Eliminated “lame-duck” session of Congress.

XXII Limited presidential term.

XXIII Extended voting rights to residents of the District of Columbia.

XXIV Extended voting rights to all classes by abolition of poll taxes.

XXV Provided presidential succession in case of disability.

TABLE 2.3

Amendments to the Constitution

58 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 58 11/28/18 5:28 PM

AMENDMENT PURPOSE

XXVI Extended voting rights to citizens aged 18 and over.‡

XXVII Limited Congress’s power to raise its own salary.

TABLE 2.3

Amendments to the Constitution—cont’d

first 10 amendments will be discussed in Chapter 4). This is consistent with the dictionary, which defines constitution as the makeup or composition of something. And it is consistent with the concept of a constitution as “higher law” because the whole point and purpose of a higher law is to establish a frame work within which government and the process of making ordinary law can take place. Even those who would have preferred more changes to the Constitution hav e to agr ee that ther e is great wisdom in this principle. A constitution ought to enable legislation and public policies to be enacted, but it should not determine what that legislation or those public policies ought to be.

For those whose hopes for change center on the Constitution, it must be empha- sized that the amendment r oute to social change is, and always will be, extr emely limited. Through a constitution it is possible to establish a wor king str ucture of government and basic rights of citiz ens by placing limitations on the po wers of that government. Once these goals have been accomplished, the next problem is how to extend rights to those people who do not already enjoy them. Of course, the Con- stitution cannot enforce itself. But it can and does have a real influence on everyday life because a right or an obligation set forth in the Constitution can become a cause of action in the hands of an otherwise powerless person.

Private property is an excellent example. Property is one of the most fundamental and well-established rights in the United States, but it is well established not because it is recognized in so many wor ds in the Constitution but because legislatur es and courts have made it a crime for anyone, including the government, to trespass or to take away property without compensation.

* These amendments also impose limits on the law-enforcement powers of federal (and especially) state and local executive branches.

** The Thirteenth Amendment was proposed January 31, 1865, and adopted less than a year later, on December 18, 1865. † In defining citizenship, the Fourteenth Amendment actually provided the constitutional basis for expanding the electorate to include all races, women, and residents of the District of Columbia. Only the “18-year-olds’ amendment” should have been necessary since it changed the definition of citizenship. The fact that additional amendments were required following the Fourteenth suggests that voting is not considered an inherent right of U.S. citizenship. Instead, it is viewed as a privilege. †† The Eighteenth Amendment, ratified in 1919, outlawed the sale and transportation of liquor. It was repealed by the Twenty-First Amendment, ratified in 1933. ‡ The Twenty-Sixth Amendment holds the record for speed of adoption. It was proposed on March 23, 1971, and adopted on July 5, 1971.

59CHAnG InG THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 59 11/28/18 5:28 PM

A constitution is good if it produces the cause of action that leads to good legis - lation, good court decisions, and appropriate police behavior. A constitution cannot eliminate power. But its principles can be a citizen’s dependable defense against the abuse of power.

The Constitution WHAT DO WE WANT? The Constitution’s framers placed individual liberty ahead of all other political values,

a concern that led many of the framers to distrust both democracy and equality. They

feared that democracy could degenerate into a majority tyranny in which the popu-

lace, perhaps led by rabble-rousing demagogues, trampled on liberty. As for equality,

the framers were products of their time and place; our contemporary ideas of racial

and gender equality would have been foreign to them. The basic structure of the

Constitution—separated powers, internal checks and balances, and federalism—was

designed to safeguard liberty, and the Bill of rights created further safeguards for

liberty. At the same time, however, many of the Constitution’s other key provisions,

such as indirect election of senators and the president and the appointment of judges

for life, were designed to limit democracy and, hence, the threat of majority tyranny.

By championing liberty, however, the framers virtually guaranteed that democracy

and even a measure of equality would sooner or later evolve in the United States.

The “Who Participates?” feature on the facing page traces the expansion of the

United States from the founding to today. Where they have liberty, more and more

people, groups, and interests will engage in politics and gradually overcome whatever

restrictions might have been placed on participation. They will fight for their rights and

interests, and in doing, may achieve greater equality, as Jim Obergefell did in securing

marriage equality for same-sex couples. By granting citizens the freedom to exercise

voice, liberty is over time conducive to democracy.

60 CHAPTER 2 THE FOUnD InG AnD THE COnST I TUT IOn

wtp12e_ess_ptr_ch02_030-065.indd 60 11/28/18 5:28 PM

Who Gained the Right to Vote through Amendments?

WHO PARTICIPATES?

*Percentages are of the adult (18+) population. These �gures are approximate for 1789 and 1869. The votings rights of convicted felons are restricted in some states and of noncitizens in all states.

SOURCES: U.S. Census of Population and Housing, 1790–2010, www.census.gov/prod/www/decennial.html (accessed 9/28/15); United States Elections Project, www.electproject.org/national-1789–present (accessed 9/27/15).

Adult Citizens Eligible to Vote in National Elections*

27.9%

1789 The Founding: White men of property, age 21+

31.7%

1869 15th Amendment: All men, age 21+

92.6%

1920 19th Amendment: All men and women, age 21+

99.9%

1971 26th Amendment: All men and women, age 18+

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

wtp12e_ess_ptr_ch02_030-065.indd 61 11/28/18 5:28 PM

Practice Quiz

1. How did the British attempt to raise revenue in the north American colonies? (p. 34) a) income taxes b) tariffs, duties, and other taxes on

commerce c) expropriation and sale of native

American lands d) licensing fees for the mining of

natural resources e) requests for voluntary donations

2. In their fight against British taxes such as the Stamp Act and the Sugar Act of 1764, new England merchants and southern planters allied with which of the following groups? (pp. 34–35) a) shopkeepers, small farmers,

laborers, and artisans b) shopkeepers only c) laborers only d) artisans only e) shopkeepers and laborers only

Review your rights as outlined in the Constitution, a copy of which is reproduced in the appendix of this book.

Find out what voting rights are retained by individuals with mental illness. Go to www.bazelon.org and search “voting” for more information.

Know Your Constitutional Rights

Find out what voting rights are retained by individuals who have been convicted of a felony. Go to www.ncsl.org and search “felon voting rights” for more information.

Should noncitizens (such as longtime permanent legal residents) have the right to vote? Go to www.latimes.com/citizenship to read more and to join the conversation online.

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

62 STUDY GU IDE

wtp12e_ess_ptr_ch02_030-065.indd 62 11/28/18 5:28 PM

3. The first governing document in the United States was (p. 37) a) the Declaration of Independence. b) the Articles of Confederation. c) the Constitution. d) the Bill of rights. e) the Virginia Plan.

4. Who was responsible for executing laws passed by the national government under the Articles of Confederation? (p. 37) a) the presidency b) the Congress c) the states d) the federal judiciary e) the federal bureaucracy

5. Which event led directly to the Con- stitutional Convention by providing evidence that the government created under the Articles of Confederation was unable to act decisively in times of national crisis? (pp. 39–40) a) the Boston Massacre b) the Boston Tea Party c) Shays’s rebellion d) the Annapolis Convention e) the War of 1812

6. Which state’s proposal embodied a principle of representing states in the Congress according to their size and wealth? (p. 41) a) Connecticut b) Maryland c) new Jersey d) rhode Island e) Virginia

7. The agreement reached at the Constitutional Convention that deter- mined that every five slaves would be counted as three free persons for the purposes of taxation and representa- tion in the House of representatives was called the (pp. 42–43) a) Virginia Plan. b) new Jersey Plan. c) Connecticut Compromise. d) Three-Fifths Compromise. e) Great Compromise.

8. Which of the following mechanisms were in the Congress to guard against “excessive democracy”? (p. 44) a) bicameralism b) staggered terms in office

c) appointment of senators for long terms

d) indirect election of the president e) all of the above

9. Which of the following best describes the Supreme Court as understood by the Founders? (p. 47) a) the body that would choose the

president b) the principle check on presidential

power c) arbiter of disputes within the Congress d) a figurehead commission of elders e) the highest court of both the

national government and the states

10. Theorists such as Montesquieu referred to the system of giving each branch of government a distinctly different constituency as (p. 50) a) a mixed regime. b) a confederation. c) a bicameral structure. d) a limited government. e) a federalist arrangement.

11. Which of the following were the Antifederalists most concerned with? (p. 51) a) interstate commerce b) the protection of property c) the distinction between principles

and interests d) the potential for tyranny in the

central government e) abolishing slavery

12. Which of the following best describes the process of amending the Constitution? (p. 56) a) It is difficult and has rarely been

used successfully to address specific public problems.

b) It is difficult and has frequently been used successfully to address specific public problems.

c) It is easy and has rarely been used successfully to address specific public problems.

d) It is easy and has frequently been used successfully to address specific public problems.

e) It is easy, but it has never been used for any purpose.

63STUDY GU IDE

wtp12e_ess_ptr_ch02_030-065.indd 63 11/28/18 5:28 PM

Key Terms

amendment (p. 56) a change added to a bill, law, or constitution

Antifederalists (p. 51) those who favored strong state governments and a weak national government and were opponents of the constitution proposed at the Ameri- can Constitutional Convention of 1787

Articles of Confederation (p. 37) America’s first written constitution; served as the basis for America’s national government until 1789

bicameral (p. 44) having a legislative assembly composed of two chambers or houses; distinguished from unicameral

Bill of Rights (p. 44) the first 10 amend- ments to the Constitution, ratified in 1791; they ensure certain rights and liberties of the people

checks and balances (p. 44) mechanisms through which each branch of government is able to participate in and influence the activities of the other branches. Major examples include the presidential veto power over congressional legislation, the power of the Senate to approve presiden- tial appointments, and judicial review of congressional enactments

confederation (p. 38) a system of gov- ernment in which states retain sovereign authority except for the powers expressly delegated to the national government

elastic clause (p. 46) Article I, Section 8, of the Constitution (also known as the nec- essary and proper clause), which declares that Congress can write laws needed to carry out its expressed powers, providing Congress with the authority to make all laws “necessary and proper” to do so

electoral college (p. 44) the electors from each state who meet after the popular election to cast ballots for president and vice president

expressed powers (p. 46) specific powers granted by the Constitution to Congress (Article I, Section 8) and to the president (Article II)

federalism (p. 44) a system of government in which power is divided, by a constitution, between the central (national) government and regional (state) governments

Federalist Papers (p. 52) a series of essays written by James Madison, Alexander Hamilton, and John Jay supporting the ratification of the Constitution

Federalists (p. 51) those who favored a strong national government and supported the constitution proposed at the American Constitutional Convention of 1787

Great Compromise (p. 42) the agreement reached at the Constitutional Convention of 1787 that gave each state an equal number of senators regardless of its population but linked representation in the House of representatives to population

judicial review (p. 47) the power of the courts to review and, if necessary, declare actions of the legislative and executive branches invalid or unconstitutional. The Supreme Court asserted this power in Marbury v. Madison (1803)

limited government (p. 53) a principle of constitutional government; a government whose powers are defined and limited by a constitution

New Jersey Plan (p. 41) a framework for the Constitution, introduced by William Paterson, that called for equal state representation in the national legislature regardless of population

separation of powers (p. 44) the division of governmental power among several institutions that must cooperate in decision-making

64 STUDY GU IDE

wtp12e_ess_ptr_ch02_030-065.indd 64 11/28/18 5:28 PM

supremacy clause (p. 48) Article VI of the Constitution, which states that laws passed by the national government and all treaties “shall be the supreme law of the land” and superior to all laws adopted by any state or any subdivision

Three-Fifths Compromise (p. 43) the agreement reached at the Constitutional Convention of 1787 that stipulated that for purposes of the apportionment of congressional seats only three-fifths of slaves would be counted

Ackerman, Erin, and Benjamin Ginsberg. A Guide to the United States Constitution. 4th ed. new York: W. W. norton, 2019.

Beeman, richard. Plain, Honest Men: The Making of the American Constitution. new York: random House, 2009.

Chernow, ron. Alexander Hamilton. new York: Penguin Books, 2005.

Ellis, Joseph. The Quartet: Orchestrating the Second American Revolution. new York: Knopf, 2015.

Gerstle, Gary. Liberty and Coercion: The Paradox of American Government from the Found- ing to the Present. Princeton, nJ: Princeton University Press, 2015.

Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. Edited by Isaac Kramnick. new York: Viking, 1987.

Jensen, Merrill. The Articles of Confederation. Madison: University of Wisconsin Press, 1963.

Paulson, Michael S, and Luke Paulson. The Constitution: An Introduction. new York: Basic Books, 2017.

Storing, Herbert, ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.

Wood, Gordon S. Empire of Liberty: A History of the Early Republic. new York: Oxford University Press, 2011.

tyranny (p. 53) oppressive and unjust government that employs cruel and unjust use of power and authority

Virginia Plan (p. 41) a framework for the Constitution, introduced by Edmund randolph, that called for representation in the national legislature based on the popu- lation of each state

For Further Reading

65STUDY GU IDE

wtp12e_ess_ptr_ch02_030-065.indd 65 11/28/18 5:28 PM

030303 chapter

Federalism WHAT GOVERNMENT DOES AND WHY IT MATTERS Decades of work as a commercial fisherman and long-haul truck driver

left Larry Harvey with severe pain. The 70-year-old grandfather found one

thing that helped: medical marijuana, which was legalized in the state of

Washington in 1998. He and his wife included cannabis among the many

herbs they grew on their property outside a little town some 80 miles north

of Spokane.

One hot August day in 2012, armed federal agents stormed the Harveys’

home. Harvey was handcuffed and sent to jail, despite his poor health and

advanced age. Prosecutors said guns had been found along with the

marijuana. A judge released him 17 days later, but the lack of health care in

jail caused his gout to flare up and left him unable to walk more than short

distances.1

Washington State, along with 32 other states and the District of Columbia,

protect qualified medical marijuana patients from arrest and prosecution

(as of 2018, 10 states permit the use of recreational marijuana as well).2

wtp12e_ess_ptr_ch03_066-095.indd 66 11/28/18 4:26 PM

67

Federalism Federalism is at the center of a national debate over marijuana policy: while marijuana remains illegal under federal law, some states permit marijuana for medicinal or recreational use. Larry Harvey, pictured here, was prosecuted under federal law for growing marijuana though Washington state allowed the practice.

Yet under federal law marijuana is classified as a Schedule I controlled sub-

stance, in the same category as heroin, LSD, and MDMA (“ecstasy”). Users

are subject to arrest and prosecution by the federal Drug Enforcement Admini-

stration. Thus medical marijuana patients like Harvey are caught in a clash

between state and federal law. States can legalize medical marijuana, and

medical marijuana defenses can be mounted in state courts, but federal law

considers marijuana a dangerous drug with no medical value; evidence about

the medical necessity of marijuana for patient-defendants cannot even be

admitted in federal court.3

The federal response to the states has shifted over time. As state laws

began to loosen restrictions on marijuana starting in the late 1990s, the

federal government at first sought to assert its authority, raiding marijuana

clinics and individual homes like Harvey’s. In 2005 the Supreme Court ruled

that these federal actions were constitutional. By 2013, however, the Justice

Department under President Obama stated that it would not challenge state

laws so long as the states maintained a close watch over their marijuana

wtp12e_ess_ptr_ch03_066-095.indd 67 11/28/18 4:26 PM

markets. Instead the federal government would focus its enforcement efforts

on specific issues, including trafficking by gangs, sales to minors, and selling

across state lines. It remains to be seen whether marijuana will be a focus of

a possibly renewed War on Drugs in the Trump administration.4

Larry Harvey’s situation and the debates about marijuana policy engage

some of the oldest questions in American government: What is the responsi-

bility of the federal government, and what is the responsibility of the states?

When should there be uniformity across the states, and when is it better to let

the states adopt their own laws based on the preferences of their population,

which may result in a diverse set of laws across the nation? The United States

is a federal system, in which the national government shares power with lower

levels of government. Throughout American history, lawmakers, politicians,

and citizens have wrestled with questions about how responsibilities should

be allocated across the different levels of government. Some responsibili-

ties, such as foreign policy, clearly lie with the federal government. Others,

such as divorce laws, are controlled by state governments. Many government

responsibilities are shared in American federalism and require cooperation

among local, state, and federal governments. The debate about “who should

do what” remains one of the most important discussions in American politics.

★ Describe what the Constitution says about the powers of the national government and of the states (pp. 69–72)

★ Trace developments in the federal framework leading to a stronger national government (pp. 73–84)

★ Analyze the changing role of states in the federal framework (pp. 85–89)

CHAPTER GOALS

68 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 68 11/28/18 4:26 PM

Federalism Shapes American Politics The Constitution has had a profound influence on American life through federalism, the division of po wers and functions between the national go v- ernment and the state go vernments. Governments can organiz e po wer

in a v ariety of ways. O ne of the most impor tant distinctions is betw een unitar y and federal go vernments. I n a unitary system, the central go vernment makes the important decisions and lower levels of government have little independent power. In such systems, lower levels of government primarily implement decisions made by the central government. In France, for example, the central government was once so involved in the smallest details of local activity that the minister of education boasted that b y looking at his watch he could tell what all F rench schoolchildr en w ere learning at that moment because the central government set the school curriculum. In a federal system, by contrast, the central go vernment shares power or functions with lo wer lev els of go vernment, such as r egions or states. N ations with div erse ethnic or language gr oupings, such as S witzerland and Canada, ar e most likely to have federal arrangements. In federal systems, lower levels of government often have significant independent power to set policy in some ar eas, such as education and social programs, and to impose taxes. Yet the specific ways in which power is shared vary greatly: no two federal systems are exactly the same.

FEDERALISM COMES FROM THE CONSTITUTION

The United States was the first nation to adopt federalism as its governing frame- work. With federalism, the framers sought to limit the national go vernment b y creating a second lay er of state governments. American federalism thus r ecognized two sovereigns in the original Constitution by granting a few “expressed powers” to the national government and reserving the rest to the states.

The Powers of the National Government As we saw in Chapter 2, the expressed powers granted to the national go vernment ar e found in Ar ticle I, S ection 8, of the Constitution. These 17 powers include the po wers to collect tax es, coin money, declare war, and r egulate commerce. Article I, S ection 8, also contains another important source of power for the national government: the implied powers that enable Congr ess “ to make all Laws which shall be necessar y and pr oper for carrying into Execution the foregoing Powers.” Such powers are not specifi- cally expressed but are implied through the expansive interpretation of delegated powers. Not until sev eral decades after the F ounding did the S upreme Cour t allow Congress to ex ercise the po wer granted in this necessary and proper clause, but as we shall see later in this chapter, this doctrine allowed the national govern- ment to expand considerably the scope of its authority, although the process was a slow one.

Describe what the Constitution says about the powers of the national government and of the states

69FEDErAL ISM SHAPES AMEr ICAn POL I T ICS

wtp12e_ess_ptr_ch03_066-095.indd 69 11/28/18 4:26 PM

Aside from these powers, the federal government operates with one other advan- tage over the states: as mentioned in the last chapter, Article VI of the Constitution says that whenev er there is a conflict between a national law and a state law , the national law shall prevail. This doctrine of national supremacy says that “[t]his Con- stitution, and the Laws of the United States . . . and all Treaties made . . . shall be the supreme Law of the Land,” even extending to state courts and constitutions.

The Powers of State Government One way in which the framers sought to pr e- serve a strong role for the states was through the Tenth Amendment to the Constitu- tion. The Tenth Amendment states that the powers that the Constitution does not delegate to the national go vernment or pr ohibit to the states ar e “reserved to the States respectively, or to the people. ” The Antifederalists, who feared that a str ong central go vernment would encr oach on individual liber ty, r epeatedly pr essed for such an amendment as a way of limiting national po wer. The Federalists agr eed to the amendment because they did not think it would do much harm, giv en the powers of the Constitution already granted to the national government. The Tenth Amendment is also called the “ reserved powers amendment ” because it aims to reserve powers to the states.

The most fundamental power that the states retain is that of coercion—the power to develop and enforce criminal codes, to administer health and safety r ules, and to regulate the family via marriage and divorce laws. The states have the power to regulate individuals’ livelihoods; if you’re a doctor or a lawyer or a plumber or a hairstylist, you must be licensed b y the state. E ven more fundamentally, the states hav e the po wer to define private property—private property exists because state laws against tr espass define who is and is not entitled to use a piece of property. If you own a car , your owner ship isn’t worth much unless the state is willing to enforce your right to posses- sion by making it a crime for any one else to drive your car without your permission. These laws are essential to citizens’ everyday lives, and the powers of the states regard- ing such domestic issues are much greater than the powers of the national government.

A state’s authority to regulate the health, safety, and morals of its citizens is com- monly referred to as the police power of the state. P olicing is what states do—they coerce you in the name of the community in or der to maintain public or der. And this was exactly the type of power that the Founders intended the states, rather than the federal government, to exercise.

In some areas, the states share concurrent power (authority possessed by both state and national governments) with the national government, whereby they retain and share some power to regulate commerce and to affect the currency—for example, by being able to charter banks, grant or deny corporate charters, grant or deny licenses to engage in a business or practice a trade, and r egulate the quality of pr oducts or the conditions of labor. Wherever there is a direct conflict of laws between the federal and the state levels, the issue will most likely be resolved in favor of national supremacy.

States’ Obligations to One Another The Constitution also creates obligations among the states. These obligations, spelled out in Article IV, were intended to

70 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 70 11/28/18 4:26 PM

promote national unity . B y r equiring the states to r ecognize actions and decisions taken in other states as legal and proper, the framers aimed to make the states less like independent countries and mor e like par ts of a single nation.

Article IV, Section 1, establishes the full faith and credit clause, stipulating that each state is normally expected to honor the “ public A cts, R ecords, and judicial Proceedings” that take place in any other state. S o, for example, if a person has a restraining or der placed on a stalker or batterer in one state, the other states ar e required to enfor ce that or der as if they had issued it.

Until recently, the full faith and cr edit clause was embr oiled in the contr oversy over same-sex marriage. I n 2004, M assa- chusetts became the first state to legalize gay marriage. B y 2015, 37 states plus the District of Columbia had legaliz ed gay marriage, and 13 states had either state constitutional amendments or laws that barr ed same-sex marriage. 5 The principle of full faith and cr edit would seem to suggest that states without same-sex marriage would be obliged to recognize such unions in their states, just as they would r ecognize heterosexual marriages per formed in other states. B ut to for estall this possibility , in 1996, Congr ess passed the D efense of M arriage Act (DOMA), which declared that states did not have to recognize same-sex marriage even if it w ere legal in other states. DOMA also said that the federal government would not r ecognize same-sex marriage, ev en if legal in some states, and that same-sex par tners w ere not eligible for federal benefits such as M edicare and S ocial S ecurity. I n 2013, ho wever, the S upreme Cour t in United States v. Windsor struck down part of the DOMA, ordering that same-sex married couples r eceive equal tr eatment on issues r elating to taxes, inheritance, and other federal laws. 6 It also opened the door for same-sex couples to r eceive federal social benefits on the same terms as heterosexual married couples. The court did not r ule on whether states hav e to r ecognize same-sex marriages in other states.

On the second anniv ersary of the Windsor ruling, the S upreme Cour t, in a historic and long-awaited decision, ruled that the Fourteenth Amendment guar- anteed a fundamental right to same-sex marriage. The case, Obergefell v. Hodges, combined four lawsuits b y same-sex couples challenging their home states ’ refusals to grant same-sex marriage licenses or r ecognize same-sex marriages performed out of state. While 37 states r ecognized same-sex marriage on the eve of the Obergefell announcement, the Cour t’s 5–4 decision immediately required that all 50 states must offer marriage licenses to two people of the

Previously a state-level policy, same-sex marriage was declared a fundamental right nationwide by the Supreme Court in 2015. The decision prompted a brief backlash when clerks in some states, such as Kim Davis from Kentucky, pictured here, refused to issue marriage licenses to same-sex couples.

71FEDErAL ISM SHAPES AMEr ICAn POL I T ICS

wtp12e_ess_ptr_ch03_066-095.indd 71 11/28/18 4:26 PM

same sex and r ecognize same-sex marriages licensed out of state. I n one str oke, same-sex marriage turned fr om a state-level policy choice to a nationally r ecog- nized right. I n the aftermath of the Obergefell decision, sev eral of the 13 states that were mandated to lift their bans on same-sex marriage protested the ruling. However, such resistance ebbed as it became clear that the cour ts would enforce the constitutional right to same-sex marriage.

Article IV, S ection 2, kno wn as the “ comity clause,” also seeks to pr omote national unity . This clause provides that citiz ens enjo ying the “ privileges and immunities” of one state should be entitled to similar treatment in other states. What this has come to mean is that a state cannot discriminate against someone fr om another state or giv e special privileges to its o wn residents. For example, in the 1970s, when Alaska passed a law that gave residents preference over nonresidents in obtaining work on the state ’s oil and gas pipelines, the S upreme Court ruled the law illegal because it discriminated against citizens of other states.7 The comity clause also regulates criminal justice among the states by requiring states to return fugitives to the states from which they have fled. Thus, in 1952, when an inmate escaped from an Alabama prison and sought to avoid being returned to Alabama on the gr ounds that he was being subjected to “ cruel and unusual punishment ” there, the Supreme Court ruled that he must be returned according to Article IV, Section 2.8

Local Government and the Constitution Local government occupies a peculiar but very impor tant place in the American system ( Table 3.1). I n fact, the status of American local go vernment is probably unique in world experience. F irst, local government has no status in the U.S. Constitution and is ther efore an authority

or function under the contr ol of the states. State legislatures created local governments, and state constitutions and laws permit local go vernments to take on some of the r esponsibili- ties of the state go vernments. Most states amended their constitutions to give their larger cities home rule, pow- ers delegated b y the state to a local unit of go vernment to manage its own affairs. Local governments have always been cr eatures of the states. 9 In r ecent y ears, some local go vern- ments have passed laws making pol - icy on matters fr om minimum wage to public br oadband, only to hav e state legislatures preempt, or remove, that authority, illustrating the degree to which local go vernments are cre- ations of the state.

TABLE 3.1

90,107 Governments in the United States TYPE NUMBER

national 1

State 50

County 3,031

Municipal 19,519

Townships 16,360

School districts 12,880

Other special districts 38,266

SOURCE: U.S. Census Bureau, www2.census.gov/govs/ cog/g12_org.pdf (accessed 11/02/13).

72 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 72 11/28/18 4:26 PM

The Definition of Federalism Has Changed Radically over Time

Many of the fiercest political con - troversies in American histor y hav e revolved ar ound competing vie ws of federalism. The best way to understand these disputes, and how federalism has

been redefined throughout American histor y, is to examine ho w its conception has changed over time. From 1789 to 1937, the political scales clearly favored the states over the federal go vernment. Then, from the New Deal period of the 1930s to the present, some impor tant limits w ere placed on state go vernments and the federal government exerted far more power than it had under the traditional system. Ov er the last 80 y ears, even as the tr end has been to ward centralization of go vernment power, the states have asserted themselves at certain times and in certain policy areas, sometimes aided b y the cour ts. At other moments a crisis shifts po wer toward the national government again, as during the September 11, 2001, terror attacks and the fiscal crisis that began in 2008.

FEDERALISM UNDER THE “TRADITIONAL SYSTEM” GAVE MOST POWERS TO THE STATES

The prevailing view of national government–state government relations under the traditional system was one of dual federalism. During this time, the states possessed a vast amount of governing power, and virtually all of the important policies affect- ing the lives of Americans were made by the state governments. For evidence, look at Table 3.2, which lists the major types of public policies b y which Americans were governed for the first century and a half under the Constitution. U nder this traditional system, the national go vernment was quite small b y comparison both with the state go vernments and with the go vernments of other Western nations. It was also v ery narrowly specialized in the functions it per formed. The national government built or sponsor ed the constr uction of r oads, canals, and bridges (internal improvements). It provided cash subsidies to shippers and shipbuilders and distributed fr ee or lo w-priced public land to encourage w estern settlement and business ventures. It placed relatively heavy taxes on imported goods (tariffs), not only to raise revenues but also to protect “infant industries” from competition from the more advanced European enterprises. It protected patents and pr ovided for a common curr ency, which encouraged and facilitated enterprises and helped to expand markets.

What do these functions of the national go vernment r eveal? F irst, vir tually all the national government’s functions were aimed at assisting commer ce. Second, virtually none of the national government’s policies directly coerced citizens. The emphasis of governmental pr ograms was on assistance, pr omotion, and encouragement—the allocation of land or capital to meet the needs of economic development.

Trace developments in the federal framework leading to a stronger national government

73THE DEF In I T IOn OF FEDErAL ISM HAS CHAngED rAD ICALLY OvEr T IME

wtp12e_ess_ptr_ch03_066-095.indd 73 11/28/18 4:26 PM

Meanwhile, state legislatures were also actively involved in economic r egulation during the nineteenth century. In the United States, then and now, private property exists only in state laws and state cour t decisions r egarding property, trespass, and real estate. American capitalism took its form from state property and trespass laws and from state laws and cour t decisions regarding contracts, markets, credit, bank- ing, incorporation, and insurance. Laws concerning slav ery were a subdivision of property law in states wher e slavery existed. The practice of important professions, such as law and medicine, was (and is) illegal ex cept as pr ovided for b y state law. Most criminal laws, fr om trespass to mur der, have been state laws, as ar e require- ments regarding the education of children. Thus, most of the fundamental govern- ing in the United States was done by the states.

Ultimately, the fundamental impact of federalism on the way the United States is governed comes not from any particular provision of the Constitution but from

TABLE 3.2

The Federal System: Specialization of Governmental Functions, 1789–1937

NATIONAL GOVERNMENT POLICIES (DOMESTIC)

STATE GOVERNMENT POLICIES

LOCAL GOVERNMENT POLICIES

Internal improvements

Subsidies

Tariffs

Public land disposal

Patents

Currency

Property laws (including slavery)

Estate and inheritance laws

Commerce laws

Banking and credit laws

Corporate laws

Insurance laws

Family laws

Morality laws

Public health laws

Education laws

general penal laws

Eminent domain laws

Construction codes

Land-use laws

Water and mineral laws

Criminal procedure laws

Electoral and political party laws

Local government laws

Civil service laws

Occupations and professions laws

Adaptation of state laws to local conditions

Public works

Contracts for public works

Licensing of public accommodation

Zoning and other land-use regulation

Basic public services

74 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 74 11/28/18 4:26 PM

the frame work itself , which has determined the flow of go vernment functions and, through that, the political development of the country. By allowing state governments to do most of the fundamental go verning, the Constitution sav ed the national government from many policy decisions that might have proved too divisive for a large and v ery young country. In helping the national go vernment remain small and apar t from the most divisiv e issues of the day , federalism con- tributed significantly to the political stability of the young nation, ev en as the social, economic, and political systems of many of the states and r egions of the country were undergoing tremendous, profound, and sometimes violent change.10 As we shall see, some impor tant aspects of federalism hav e changed, but the federal framework has survived over two centuries and through a devastating civil war.

THE SUPREME COURT PAVED THE WAY FOR THE END OF THE EARLY FEDERAL SYSTEM

As the nation gr ew, disputes ar ose about the po wers of the federal go vernment versus the powers of the states. In the first several decades after the Founding, the Supreme Cour t decided several critical cases that expanded federal powers and facilitated trade acr oss the states. These decisions removed barriers to trade in the new nation and laid the groundwork for a national economy. However, by the end of the nineteenth century, as reformers began to enact laws regulating businesses through such measur es as child labor r estrictions, the Cour t took a much more restrictive view of federal power. Not until well into the New Deal, in 1937, did the federal government gain the expansive powers it exercises today.

Article I, Section 8, of the Constitution delegates to Congress the power “to regu- late Commerce with for eign Nations, and among the sev eral States and with the Indian Tribes.” For most of the nineteenth centur y, the Supreme Court consis tently interpreted this commerce clause in favor of national power over the economy. The first and most impor tant such case was McCulloch v. Maryland (1819), which inv olved the question of whether Congr ess had the power to charter a national bank as such an explicit grant of po wer was nowhere to be found in Ar ticle I, Section 8.11 Chief Justice John Marshall answered that this power could be “implied” from other powers that were expressly delegated to Congress, such as the “powers to lay and collect taxes; to borrow money; to regulate commerce; and to declare and conduct a war.”

By allo wing Congr ess to use the necessar y and pr oper clause to interpr et its delegated powers expansively, the Supreme Court created the potential for an un - precedented increase in national go vernment power. Marshall also concluded that whenever a state law conflicted with a federal law (as in the case of McCulloch v. Maryland), the state law would be deemed inv alid since the Constitution states that “the Laws of the United States . . . shall be the supreme Law of the Land.” Both parts of this great case are pro-national, including the verification of the principle of “national supremacy,” yet Congress did not immediately seek to expand the policies of the national government.

Another major case, Gibbons v . O gden (1824), r einforced this nationalistic interpretation of the Constitution. The important but r elatively narr ow issue

75THE DEF In I T IOn OF FEDErAL ISM HAS CHAngED rAD ICALLY OvEr T IME

wtp12e_ess_ptr_ch03_066-095.indd 75 11/28/18 4:26 PM

was whether the state of New York could grant a monopoly to R obert Fulton’s steamboat company to operate an ex clusive ser vice betw een N ew York and New J ersey. Chief J ustice M arshall argued that N ew York S tate did not hav e the power to grant this particular monopoly. In reaching this decision, Marshall had to define what Article I, Section 8, meant by “commerce among the several states.” He insisted that the definition was “comprehensive,” extending to “every species of commercial intercourse.” However, this comprehensiveness was limited “to that commerce which concerns more states than one.” Gibbons is important because it established the supr emacy of the national go vernment in all matters affecting what later came to be called “interstate commerce.”12 But the pr ecise meaning of interstate commerce would remain uncertain during several decades of constitutional discourse. B acked b y the implied po wers and national supr emacy decision in McCulloch and b y the br oad definition of “interstate commerce” in Gibbons, Article I, Section 8, was a source of power for the national government as long as Congr ess sought to facilitate commer ce through subsidies, ser vices, and land grants.

Later in the nineteenth century, though, the Supreme Court declared any effort of the national government to regulate commerce in such areas as fraud, the production of substandard goods, the use of child labor , or the existence of danger ous work- ing conditions or long hours to be unconstitutional as a violation of the concept of interstate commerce. Such legislation meant that the federal go vernment was entering the factory and the wor kplace—local areas—and was attempting to r egulate goods that had not yet passed into interstate commerce. To enter these local workplaces was to exercise police power—a power reserved to the states. No one questioned the power of the national go vernment to r egulate businesses that intrinsically inv olved interstate commerce, such as railr oads, gas pipelines, and water way transportation. But well into the twentieth century, the Supreme Court used the concept of interstate commerce as a barrier against most efforts by Congress to regulate local conditions.

This interpretation of federalism gav e the American economy a fr eedom from federal government control that closely appr oximated the ideal of fr ee enterprise. The economy was never entirely free, of course; in fact, entrepreneurs themselves did not want complete fr eedom from government. Between the Civil War and the 1930s, the federal government aided business by providing law and order; a stable currency; roads, canals, and railroads; and the courts and police necessary to enforce contracts and prevent trespass. But federalism, as interpreted by the Supreme Court for 70 years after the Civil War, made it possible for business to have its cake and eat it, too. Entrepreneurs enjoyed the benefits of national policies facilitating commerce but were shielded by the courts from policies that regulate commerce by protecting the rights of consumers and workers.13 In addition, the Tenth Amendment was used to bolster arguments about states’ rights, the principle that the states should oppose the increasing authority of the national government. This principle was most popu- lar in the period before the Civil War.

In the early twentieth century, however, the Tenth Amendment appeared to lose its force as reformers began to press for national regulations to limit the power of large corporations and to protect the health and welfare of citizens, as we shall see next.

76 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 76 11/28/18 4:26 PM

FDR’S NEW DEAL REMADE THE GOVERNMENT

The New Deal of the 1930s marked a major change in how the courts interpreted national power. The door to increased federal action opened when states pr oved unable to cope with the demands brought on by the Great Depression. Before the depression, states and localities took responsibility for addressing the needs of the poor, usually thr ough priv ate charity. B ut the extent of the depr ession quickly exhausted local and state capacities. B y 1932, 25 per cent of the wor kforce was unemployed. The jobless lost their homes and settled into camps all over the country, called “Hoovervilles” after President Herbert Hoover. Elected in 1928, the year before the depression hit, Hoover steadfastly maintained that ther e was little the federal government could do to alleviate these people ’s misery caused by the depression. It was a matter for state and local governments, he said.

Yet demands mounted for the federal government to take action. When Franklin Delano Roosevelt took office in 1933, he energetically threw the federal government into the business of fighting the depression through a number of pr oposals known collectively as the N ew Deal. He proposed a variety of temporary measures to pro- vide federal relief and work programs. Most of the programs he proposed were to be financed by the federal go vernment but administer ed by the states. I n addition to these temporary measures, Roosevelt presided over the creation of several important federal programs designed to pr ovide future economic security for Americans. The New Deal signaled the rise of a more active national government.

For the most par t, the ne w national pr ograms that the R oosevelt adminis - tration dev eloped did not dir ectly take po wer away fr om the states. I nstead, Washington typically r edirected states b y offering them grants-in-aid, programs through which Congress provided money to state and local go vernments on the condi - tion that the funds be emplo yed for purposes defined by the federal government.

Franklin Roosevelt did not invent the idea of grants- in-aid, but his N ew Deal vastly expanded the range of grants-in-aid to include social pr ograms, pr o- viding grants to the states for financial assistance to poor childr en. Congress added mor e grants after World War II, cr eating new programs to help states fund activities such as pr oviding school lunches and building highways. S ome- times the national government required state or local governments to match the national contri- bution dollar for dollar, but in some pr ograms,

John C. Calhoun, one of the most prominent advocates of states’ rights, argued that states should have the right to veto any federal law they found to be unconstitutional.

wtp12e_ess_ptr_ch03_066-095.indd 77 11/28/18 4:26 PM

such as the development of the inter- state highway system, the congr es- sional grants pr ovided 90 per cent of the cost.

These types of federal grants- in-aid ar e called categorical grants because they ar e giv en to states and localities by the national gov- ernment on the condition that expenditures be limited to a pr ob- lem or gr oup specified by law . For the most par t, the categorical grants cr eated befor e the 1960s simply helped the states per form their traditional functions. 14 In the 1960s, ho wever, the national r ole expanded and federal funding in the form of categorical grants increased dramatically (see F igure 3.1). The grants authorized during the 1960s addressed national purposes much more str ongly than did earlier grants. One of the most impor tant— and expensiv e—was the federal Medicaid program, which pr ovides

states with grants to pay for medical car e for the poor , the disabled, and many nursing home residents. Over time the value of categorical grants has risen dramatically, increasing from $2.3 billion in 1950 to an estimated $675 billion in 2017.

CHANGING COURT INTERPRETATIONS OF FEDERALISM HELPED THE NEW DEAL WHILE PRESERVING STATES’ RIGHTS

In a dramatic change beginning in 1937, the S upreme Cour t threw out the old distinction between interstate and intrastate commer ce on which it had r elied in the late 1800s and early 1900s. I t converted the commer ce clause fr om a sour ce of limitations to a sour ce of po wer for the national go vernment. The Court began to refuse to review appeals that challenged acts of Congr ess protecting the rights of employees to organize and engage in collective bargaining, regulating the amount of farmland in cultivation, extending low-interest credit to small businesses and farmers, and restricting the activities of corporations dealing in the stock mar ket; it upheld many other laws that contributed to the construction of the modern “welfare state.”15

The Court also r eversed its position on the Tenth Amendment, which it had used to strike down national laws as violations of state po wer. Instead, the Cour t

The New Deal expanded the scope of the federal government. One of the largest and most effective New Deal programs, the Works Progress Administra- tion, employed millions of Americans in public-works projects such as constructing highways, bridges, and public parks.

78 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 78 11/28/18 4:26 PM

approved numerous expansions of national power, to such an extent that the Tenth Amendment appeared irrelevant. In fact, in 1941, Justice Harlan Fiske Stone declared that the Tenth Amendment was simply a “truism” that had no real meaning.16

Yet the idea that some powers should be reserved to the states did not go away. Indeed, in the 1950s southern opponents of the civil rights mo vement revived the idea of states’ rights. In 1956, 96 southern members of Congress issued a “Southern Manifesto” in which they declar ed that southern states w ere not constitutionally bound b y S upreme Cour t decisions outlawing racial segr egation. They believed

FIGURE 3.1

Historical Trend of Federal Grants-in-Aid,* 1960–2019 (in billions of dollars)** Spending on federal grants-in-aid to the states and local governments has grown dramati- cally since 1990. These increases reflect the growing public expectations about what government should do. What has been the most important cause of the steady increase in these grants?

*Excludes outlays for national defense and international affairs. **Data in constant (fiscal year 2009) dollars. †Data for 2018 and 2019 are estimated.

SOURCE: Office of Management and Budget, U.S. Budget for Fiscal Year 2019, Historical Tables: Table 12.1, Summary Comparison of Total Outlays for Grants to State and Local Governments: 1940-2023, www.whitehouse .gov/omb/historical-tables/ (accessed 6/8/18).

0

100

200

300

400

500

600

$700

’60 ’65 ’70 ’75 ’80 ’85 ’90 ’95 ’00 ’05 ’06 ’07 ’08 ’09 ’10 ’11 ’12 ’13 ’14 ’15 ’16 ’17 ’18† ’19†

Grants to the states rose sharply in 2009 as a result of federal efforts to stimulate the economy.

The increasing costs of medical care pushed up government spending on health care in the 2000s.

Federal Medicaid program �rst enacted.

79THE DEF In I T IOn OF FEDErAL ISM HAS CHAngED rAD ICALLY OvEr T IME

wtp12e_ess_ptr_ch03_066-095.indd 79 11/28/18 4:26 PM

that states’ rights should o verride individual rights to liber ty and formal equality . With the triumph of the civil rights movement, the slogan of “states’ rights” became tarnished by its association with racial inequality.

The 1990s saw a revival of inter est in the Tenth Amendment and impor tant Supreme Court decisions limiting federal power. Much of the interest in the Tenth Amendment stemmed from conservatives who believe that a strong federal govern- ment encroaches on individual liber ties. They believed such fr eedoms were better protected by returning more power to the states thr ough the pr ocess of devolution, whereby a pr ogram is r emoved from one lev el of go vernment by delegating it or passing it down to a lo wer level of government, such as fr om the national go vern- ment to the state and local governments. In 1996, Republican presidential candidate Bob Dole carried a copy of the Tenth Amendment in his pocket as he campaigned, pulling it out to read at rallies.17

The Supreme Cour t’s 1995 r uling in United S tates v . Lopez fueled fur ther interest in the Tenth Amendment. In that case, the Court, stating that Congress had ex ceeded its authority under the commer ce clause, str uck down a federal law that barr ed handguns near schools. 18 This was the first time since the New Deal that the Cour t had limited congr essional po wers in this way . I n 1997 the Cour t again r elied on the Tenth Amendment to limit federal po wer in Printz v. United States.19 The decision declared unconstitutional a pr ovision of the Brady Handgun Violence Prevention Act that r equired state and local law- enforcement officials to conduct background checks on handgun purchasers. The Court declared that this pr ovision violated state so vereignty guaranteed in the Tenth Amendment because it r equired state and local officials to administer a federal regulatory program.

COOPERATIVE FEDERALISM PUSHES STATES TO ACHIEVE NATIONAL GOALS

The growth of categorical grants, along with fav orable court rulings, created a new kind of federalism. I f the traditional system of two so vereigns per forming highly different functions could be called dual federalism, historians of federalism suggest that the system since the N ew Deal could be called cooperative federalism, in which grants-in-aid have been used strategically to encourage states and localities to pursue nationally defined goals, with national and state governments sharing po wers and resources via intergo vernmental cooperation. O ne political scientist characteriz ed this as a move from “layer cake federalism” to “marble cake federalism,”20 in which intergovernmental cooperation and sharing have blurred a once-clear distinguishing line, making it difficult to say where the national government ends and the state and local governments begin (see Figure 3.2).

For a while in the 1960s, it appear ed as if the state go vernments would become increasingly irr elevant to American federalism. M any of the ne w federal grants bypassed the states and instead sent money dir ectly to local governments and even to local nonpr ofit organizations. The theme heard repeatedly in Washington was that the states simply could not be trusted to carry out national purposes.21

80 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 80 11/28/18 4:26 PM

One of the r easons that Washington distrusted the states was the way African American citizens were treated in the South. The southern states’ forthright defense of segregation, justified on the grounds of states’ rights, tarnished the image of the states as the civil rights mo vement gained momentum. The national officials who planned the War on Poverty during the 1960s pointed to the racial ex clusion prac- ticed in the southern states as a r eason for b ypassing state go vernments. Political scientist James Sundquist described their thinking: “In the drafting of the Economic Opportunity A ct, an ‘ Alabama syndr ome’ dev eloped. Any suggestion within the poverty task force that the states be given a role in the administration of the act was met with the question, ‘Do you want to give that kind of power to [then–Alabama governor] George Wallace?’”22 (Wallace at the time was nationally kno wn for his virulent opposition to the civil rights movement.)

Yet ev en though many national policies of the 1960s b ypassed the states, other new programs, such as M edicaid, r elied on state go vernments for their implementation. I n addition, as the national government expanded existing programs run by the states, states had to take on mor e responsibilities. These new responsibilities meant that the states were now playing a critical role in the federal system.

NATIONAL STANDARDS HAVE BEEN ADVANCED THROUGH FEDERAL PROGRAMS

Over time, the Supreme Court has pushed for greater uniformity in rules and proce- dures across the states. In addition to legal decisions, the national government uses two other tools to create similarities across the states: grants-in-aid and regulations.

FIGURE 3.2

Dual versus Cooperative Federalism In layer-cake federalism, the responsibilities of the national government and state govern- ments are clearly separated. In marble-cake federalism, national policies, state policies, and local policies overlap in many areas.

DUAL FEDERALISM COOPERATIVE FEDERALISM

“Marble Cake”

Cooperate on some policies

“Layer Cake”

National Government

State Governments

National Government

State Governments

81THE DEF In I T IOn OF FEDErAL ISM HAS CHAngED rAD ICALLY OvEr T IME

wtp12e_ess_ptr_ch03_066-095.indd 81 11/28/18 4:26 PM

Grants-in-aid, as w e have seen, ar e incentives: Congress provides an incentiv e by giving money to state and local governments if they agree to spend it for the purposes Congress specifies. But as Congr ess in the 1970s began to enact legislation in ne w areas, such as environmental policy, it resorted to another tool: r egulated federalism.23 The national government began to set standards of conduct or to r equire the states to set standards that met national guidelines. The effect of these national standards is that state and local policies in the areas of environmental protection, social services, and edu- cation are more uniform from coast to coast than are other nationally funded policies.

Some national standar ds r equire the federal go vernment to take o ver ar eas of regulation formerly o verseen b y state or local go vernments. Such preemption (the principle that allo ws the national go vernment to o verride state or local actions in certain policy areas) occurs when state and local actions ar e found to be inconsist - ent with federal requirements. If this occurs, all regulations in the preempted area must hencefor th come fr om the national go vernment. In many cases, the cour ts determine the scope of the federal authority to pr eempt. For example, in 1973 the Supreme Court struck down a local ordinance prohibiting jets from taking off from the airport in Burbank, California, between 11 p.m. and 7 a.m. It ruled that the fed- eral Civil Aeronautics Act granted the Federal Aviation Administration all authority over flight patterns, takeoffs, and landings and that local governments could not impose regulations in this area.

As federal regulations increased after the 1970s, Washington increasingly preempted state and local action in many different policy areas. After 1994, when R epublicans retook control of Congr ess, the federal go vernment used its pr eemption power in business’s favor, limiting the ability of states to tax and r egulate industry. For exam- ple, in 1998, Congress passed a law that pr ohibited states and localities from taxing internet access services. The 1996 Telecommunications Act reduced local control by giving broadcasters and digital companies br oad discretion over where they could erect digital television and cellular phone towers even if local citizens objected.24

In 2009, after only a few months in office, President Obama reversed the Bush administration’s use of federal regulations to limit state laws. Under the new policy, federal regulations should preempt state laws only in extraordinary cases. The presi- dent directed agency leaders to r eview the r egulations that had been put in place over the previous 10 years and consider amending them if they inter fered with the “legitimate prerogatives of the states. ”25 But the Obama administration did use its power of preemption to challenge state immigration laws, charging that states were making laws in a domain reserved for federal authority.

The growth of national standards has created some new problems and has raised questions about ho w far federal standar dization should go . O ne pr oblem that emerged in the 1980s was the incr ease in unfunded mandates—regulations or ne w conditions for receiving grants that impose costs on state and local go vernments for which they are not reimbursed by the national government. The growth of unfunded mandates was the product of a Democratic Congress, which wanted to achieve liberal social objectives, and Republican presidents who opposed increased social spending. Between 1983 and 1991, Congress mandated standards in many policy areas, including social services and environmental regulations, without providing additional funds to

82 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 82 11/28/18 4:26 PM

While the United States has evolved into a system of cooperative federalism, some democracies began that way. germany’s constitution, adopted in 1949, was designed to use a cooperative federal system to help prevent the abuses of central government power seen in Hitler’s germany. For example, the upper house of the german parliament comprises delegates from the Länder (“states”) governments, giving the states an official check on all national policy.

The most interesting blending of power, however, is in taxation and spending. Unlike U.S. states, german states and local governments

have no taxation powers, making them fully dependent on federal funding. However, german states are responsible for implementing most government policy. As a result, almost two-thirds of german government spending is carried out by states and local governments, compared to less than half of U.S. spending. This emphasis on local spending includes the running of germany’s extensive social security program, a complex system carried out at the national, state, and local levels. In the United States, comparable social spending is done by the national government or is left to Americans to pay out of pocket.

Cooperative Federalism: Competition or a Check on Power?

UNITED STATES GERMANY

50 states

National

Pensions, health, defense veterans bene�ts, transportation, food and agriculture, foreign policy, etc.

Education, general public services, law enforcement, economic affairs, health, etc.

Defense, digital infrastructure, foreign policy

Welfare, general public services, education, economic affairs, transport, etc.

Multilevel Social Security System: pensions, child support, unemployment insurance, health, maternity leave, etc.

16 Länder

Taxation: Federal only

52% 48 17% 40 43

State and local

Taxation: Federal, state, and local

SOURCE: OECD, “Figure 2.42. Distribution of general government expenditures across levels of government, 2015 and 2016,” Government at a Glance 2017, www.oecd-ilibrary.org/governance/government-at-a-glance-2017_gov_glance -2017-en; “Regional Policy Profile: United States,” www.oecd.org/regional/regional-policy/profile-United-States.pdf and “Regional Policy Profile: Germany,” www.oecd.org/regional/regional-policy/profile-Germnay.pdf (accessed 6/7/18).

wtp12e_ess_ptr_ch03_066-095.indd 83 11/28/18 4:26 PM

meet those standar ds. Altogether, Congress enacted 26 laws that imposed ne w r egula- tions or r equired states to expand existing programs.26 For example, the 1973 Rehabili- tation Act prohibited discrimination against the disabled in pr ograms that w ere partly funded by the federal government. The new law required state and local go vernments to make public transit accessible to disabled people with wheelchair lifts in buses, ele - vators in train stations, and special trans - portation systems wher e needed. These requirements were estimated to cost state and local go vernments $6.8 billion o ver 30 y ears.27 But Congr ess did not supply additional funding to help states meet these new requirements; the states had to shoulder the incr eased financial burden themselv es. States complained that mandates took up so much of their budgets that they w ere not able to set their own priorities.28

These burdens became par t of a rally - ing cr y to r educe the po wer of the federal government—a cr y that took center stage when a Republican Congress was elected in 1994. O ne of the first measures the ne w

Congress passed was an act to limit the cost of unfunded mandates, the U nfunded Mandates R eform A ct (UMRA). U nder this law , Congr ess must estimate the expense for any proposal it believes would exceed the threshold established in UMRA ($76 million in 2014, adjusted for inflation). Congress must then identify funding sources for bills that exceed the threshold established in UMRA.

New national problems inevitably raise the question of who pays. R ecently, concern about unfunded mandates arose around health care reform. The major health care reform enacted under P resident Obama, the Affordable Care Act of 2010, called for a major expansion of M edicaid. B ecause M edicaid is par tly funded b y the states, any major increase in the number of Medicaid recipients could impose a significant fiscal burden on the states. Although the law pr ovided additional federal aid to suppor t the new require- ments, the Medicaid provisions became a target for state challenges to the health care law. One of the central claims in the 26 states ’ lawsuits charged that the federal go vernment did not have the power to withhold Medicaid funds from states that did not implement the new expansions. The Supreme Court ultimately r uled that states could decline to expand Medicaid coverage without losing their existing Medicaid funds. After the Court’s decision, some R epublican governors announced that they would not implement the expanded coverage. By late 2018, 36 states plus the District of Columbia had decided to expand Medicaid, and 14 had decided to not expand.

The federal government frequently passes laws that impose mandates on the states, such as the 1990 Americans with Disabilities Act, which protects against discrimination based on disability. States were required to pay for changes to meet federal standards for accessibility in public transportation and public facilities.

84 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 84 11/28/18 4:26 PM

New Federalism Means More State Control

Since the 1970s, as states hav e become mor e capable of adminis - tering large-scale pr ograms, the idea of dev olution—transferring r espon-

sibility for policy fr om the federal go vernment to the states and localities—has become popular.

Proponents of more state authority have looked to block grants as a way of reduc- ing federal contr ol. B lock grants are federal grants-in-aid that allo w states consi - derable discretion in how the funds are spent. Richard Nixon led the first push for block grants in the early 1970s. N ixon’s appr oach consolidated pr ograms in the areas of job training, community dev elopment, and social ser vices into three large block grants. These grants imposed some conditions on states and localities as to how the money should be spent but avoided the narrow regulations contained in the categorical grants discussed earlier . I n addition, Congr ess appr oved a four th block grant called general revenue sharing, whereby the federal government provided money to local governments and counties with no strings attached; localities could spend the money as they wished. In enacting revenue sharing, Washington acknowl- edged both the critical r ole that state and local go vernments play in implementing national priorities and their need for incr eased funding and enhanced flexibility in order to carry out that role (see Figure 3.3). Ronald Reagan’s version of New Federalism

The debate over national versus state control of speed limits arose in 1973, when gas prices skyrocketed and supplies became scarce. Drivers nationwide were forced to wait in long lines at gas stations. The federal government responded to the gas crisis by instituting a national 55-mile-per-hour speed limit.

Analyze the changing role of the states in the federal framework

85nEW FEDErAL ISM MEAnS MOrE STATE COnTrOL

wtp12e_ess_ptr_ch03_066-095.indd 85 11/28/18 4:26 PM

(returning power to the states thr ough block grants) similarly aimed to r educe the national government’s control. In all, Congress created 12 new block grants between 1981 and 1990.29

But this ne w appr oach, like those that pr eceded it, has not pr ovided magic solutions to the pr oblems of federalism. F or one thing, ther e is always a trade-off between accountability—that is, whether the states are using funds for the purposes intended—and flexibility. If the objectiv e is to have accountable and efficient government, it is not clear that state bur eaucracies are any mor e efficient or more capable than national agencies. I n Mississippi, for example, the state D epartment of Human Services spent money from the child care block grant for office furniture and designer salt and pepper shakers that cost $37.50 a pair . As one M ississippi state legislator said, “I’ ve seen too many y ears of good ol ’ bo y politics to kno w they shouldn’t [transfer money to the states] without stricter contr ols and require- ments.”30 Even after block grants w ere created, Congress reimposed regulations in order to increase the states’ accountability.

At times the federal go vernment has also mo ved to limit state discr etion over spending in cases wher e it thinks states ar e too gener ous. For example, in 2007, President B ush issued r egulations that pr evented states fr om pr oviding benefits under the S tate Child Health Insurance Program (SCHIP) to childr en in families well above the poverty line. The Bush administration also barred states from provid- ing chemotherapy to undocumented immigrants, who ar e guaranteed emergency medi cal treatment under Medicaid.31

THERE IS NO SIMPLE ANSWER TO FINDING THE RIGHT NATIONAL–STATE BALANCE

As Figure 3.4 indicates, federalism has changed dramatically over the course of Ameri- can history, even over just the past several decades. Finding the right balance among states and the federal government is a persistent challenge for American democracy .

FIGURE 3.3

Regulated versus New Federalism

Regulated Federalism New Federalism

National government sets policy for the states

State governments help pay for and administer programs

State governments have �exibility to make policy and administer programs

National government provides funding

National standards

Conditional grants

Unfunded mandates

Block grants

Revenue sharing

Devolution

86 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 86 11/28/18 4:26 PM

In r ecent y ears, many of the most contr oversial issues in American politics— including the appr opriate size of public social spending, the rights and benefits of immigrants (legal as well as undocumented), what government should do in response to climate change, and whether and ho w government should regulate business and moral behavior—have been fought out through the federal system. Politicians of all stripes regularly turn to the federal government to override decisions made by states. Likewise, when the federal go vernment proves unable or unwilling to act, activists and politicians try to achieve their goals in states and localities. In many cases, it is up to the courts to decide which level of government should have the final say.

Although conservatives proclaim their preference for a small federal government and their support for more state autonomy, in fact, they often expand the federal government and limit state autonomy . President George W. Bush, for example, expanded federal control and increased spending in various policy areas. The 2001 No Child Left Behind Act, passed with D emocratic support, introduced unprecedented federal inter vention in public education, traditionally a state and local r esponsibility. New detailed federal testing requirements stipulating how states should treat failing schools were major expansions of federal authority in education. When a number of states thr eatened to defy some of the new federal requirements, Bush’s Department of Education relaxed its tough stance and became more flexible in enforcing the act. But the administration did not back down entirely, leading to several legal challenges to different aspects of the law.

In the Supreme Court, too, many decisions suppor ted a stronger federal role over the states. Decisions to uphold the federal Family and Medical Leave Act and the Amer- icans with Disabilities Act asserted federal authority against state claims of immunity from the acts. In one important 2005 case, the Court upheld the right of Congress to ban medical marijuana, even though 11 states had legalized its use. Overturning a lower court ruling that said Congress did not have authority to regulate marijuana when it had been grown for noncommercial purposes in a single state, the Supreme Court ruled that the federal government did hav e the power to r egulate use of all marijuana under the commerce clause. Even so, as we saw in the chapter opener, by 2018, 32 states and the District of Columbia had legaliz ed medical marijuana, and 10 states hav e now gone

FIGURE 3.4

The Changing Federal Framework

1789

Dual Federalism 1789–1937

1937

Cooperative Federalism 1937–60

1960

Regulated Federalism 1960s–1970s

1970 2000

New Federalism 1970s–

87nEW FEDErAL ISM MEAnS MOrE STATE COnTrOL

wtp12e_ess_ptr_ch03_066-095.indd 87 11/28/18 4:26 PM

further to legalize its recreational use. Although the federal government has not endorsed these laws, it has made prosecution of marijuana in these states a low priority.

The most significant Obama law to affect the states was the 2010 health care overhaul. One controversial par t of that legislation r equired states to expand their Medicaid programs to cover more low-income residents and to offer them additional services. As we saw earlier, the Supreme Court’s 2012 ruling in National Federation of Independent Business v. Sebelius that the federal government could not impose all- or-nothing conditions on the states—implement the expansion or lose all M edicaid funding—represented a ne w limit on the national go vernment’s power. The ruling mostly upheld the law but also gav e the states more leeway. The other controversial provision of the Affordable Care Act was the “individual mandate,” the requirement that individuals without health care insurance be required to purchase such insurance. The 26 states suing the federal government charged that Congress had no power to force individuals to purchase a product and that it had exceeded its power under the commerce clause. In defending the law, the federal government argued the opposite: that the complex interactions of the health care market made the individual mandate constitutional under the commer ce clause. 32 From the moment a person is born, he or she is par t of the health car e economy. Even if a person does not hav e health insurance, federal law requires that hospitals provide treatment in an emergency. Those costs are borne by all of the people who do pay for health insurance.

Taking a mor e narrow view of the health car e market, the Cour t rejected this argument on the gr ounds that the federal go vernment cannot r egulate economic inactivity, that is, the failure to pur chase health insurance. Instead, it found that the Affordable Care Act was constitutional based on Congr ess’s power to tax. The law requires individuals who do not receive insurance from their employers or their parents and are not eligible for Medicaid to purchase insurance or pay a penalty. The Court reasoned that the penalty could be considered a tax and, for that reason, was constitutional. At the end of 2017, however, Congress passed a sweeping tax bill that included a provision to eliminate the individual mandate.

The Affordable Care Act survived another challenge in 2015 when the S upreme Court ruled that federal subsidies to help pay for insurance should be av ailable to residents in states that offered insurance only through the federal exchange as well as in states that had formed their own state insurance marketplaces. The outcome of King v. Burwell ensured that subsidies would be available in all states.33

In other policy areas, states and localities have forged their own policies because the federal government has not acted. One of the most controversial of these issues is immi- gration legislation. In the first half of 2013, for example, state legislatures enacted 377 laws and r esolutions related to immigration. 34 Many state and local laws that go vern immigration are not contr oversial, but some raise critical questions about the federal government’s role as opposed to the r esponsibilities of state and local go vernments. In 2010, Ariz ona enacted an extr emely controversial immigration measur e requiring immigrants to carry identity documents and requiring police to ask about immigration status when they s top d rivers they suspect of being undocumented immigrants. The federal Department of Justice joined several other groups in challenging the law. In the words of then–attorney general Eric Holder, “It is clearly unconstitutional for a state to

88 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 88 11/28/18 4:26 PM

set its own immigration policy.”35 In 2012 the Supreme Court ruled that Arizona’s law did not pr eempt federal authority to make immigration law.36 The court’s decision in Arizona v. United States did o verturn three of four pr ovisions in Ariz ona’s law, but it ruled in fav or of the most contr oversial provision, which allows state police to check the immigration status of any one stopped or arrested.

Immigration policy once again be - came embr oiled in federal–state conflict after 2014. F rustrated b y congr essional inaction on immigration, President Obama issued ex ecutive memoranda in 2012 to provide temporar y legal status and wor k permits to undocumented childr en who had been brought to the United States, termed the “Dreamers.” However, when Oba- ma moved to expand this Deferred Action for Childhood Arrivals program (DACA) in 2014 and extend legal status to some parents of U.S. citizens and legal resi- dents (called D eferred Action for P arents of Americans, or DAP A), 26 states, led b y Texas, challenged the ex ecutive or der in cour t. They charged that the expansion ex ceeded ex ecutive authority and would impose unr easonable costs on states. The expansion was never implemented because the Supreme Court, in the wake of the death of Justice Antonin Scalia, deadlocked in a 4–4 decision, leaving in place lower-court decisions that sided with the states.37 The Trump administration began a six-month phaseout of the DA CA program in S eptem- ber 2017, giving Congr ess until M arch 2018 to devise a legislativ e solution. 38 Congressional action failed, but as of mid-2018, DACA remained in place due to two federal judges’ rulings.

President Donald Trump campaigned promising more rigorous immigration en- forcement. In 2017 he signed an executive order increasing the number of immigrants considered a priority for deportation, from those convicted of serious crimes such as felonies or multiple misdemeanors as under O bama to those accused or convicted of minor crimes as well.39 A growing number of cities, counties, and states declared themselves “sanctuaries,” which limit cooperation with national government enforce- ment of immigration law. President Trump pledged to cancel funding for sanctuar y cities and states, but in 2017 a federal judge temporarily blocked the Trump adminis- tration from withholding federal grants from these jurisdictions because of sanctuary policies.40 The Department of Homeland Security rescinded the DACA expansion in 2017, but the original pr ogram remained. Claiming sympathy for the “D reamers,” Trump asked Congress to resolve the matter through legislation.41

As the cases of health care and immigration show, federalism operates like ping-pong, with the federal and state governments reacting to the actions, or inactions, of the other. It is easy to see how confusing and ever-changing federal–state relations can be.

Since the Trump administration’s announce- ment of the phaseout of the DACA program put in place by the Obama administration, the legislative branch on the federal level has failed to implement a solution. State-level challenges to the termination of the policy, however, have been successful in protecting those covered by the program.

89nEW FEDErAL ISM MEAnS MOrE STATE COnTrOL

wtp12e_ess_ptr_ch03_066-095.indd 89 11/28/18 4:26 PM

Federalism WHAT DO WE WANT? In recent years, sharp differences in Americans’ views on many economic and social

issues have been reflected in the federal system. Until 2015, when the Supreme Court

ruled that state-level bans on same-sex marriage were unconstitutional, 37 states

allowed same-sex marriage and 13 did not. Today, over half of the 50 states have legali-

zed medical marijuana, while 10 and Washington, D.C., have gone further and legalized

recreational marijuana. More states are likely to change their laws on marijuana, but

differences across the states are likely to persist for many years. Half of the states wel-

comed the expansion of Medicaid, the program that provides medical assistance to the

poor. The other half, concerned about costs and the growing role of government in the

economy, initially declined to implement the expansion. Some states actively welcome

immigrants and seek to opt out of restrictive federal laws; other states go beyond the fed-

eral government in enacting restrictive immigration laws. Yet while states have the authority

to devise their own laws on a variety of important issues, Americans’ participation in state

and local politics remains low (see the “Who Participates?” feature on the facing page).

As described in the opening of this chapter, Larry Harvey’s arrest for using medical

marijuana, legal in his state but illegal under federal law, raises questions about the

promise, conflict, and ambiguity inherent in a federal system of government. Our history

of federalism means that we are comfortable with the idea that states should have

the freedom to enact laws that best serve their residents, within the bounds set by

Congress and the courts. We expect states to act as “laboratories of democracy” that

try out new policies. But the great variation across the states today poses questions

that will have to be answered in the coming decades. Is the federal government endan-

gering people by allowing states to legalize marijuana? Or is the federal government

endangering critically ill people by prosecuting medical marijuana use even in states

with legalization? Is it fair that a transgender person in California can legally change the

sex on her birth certificate, but a transgender person in Tennessee would be denied

the same? Is it reasonable that a gun owner can openly carry a handgun in georgia but

not in Florida? Each generation confronts a different set of questions about how much

variation across the states is appropriate. Are some of the issues on which the states

differ fundamental rights that should be uniform across the country? Is it important to

preserve state choice on most matters? As today’s youth help to answer these ques-

tions in the coming decades, they will be remaking American federalism.

Thus, American federalism remains a work in progress. As public problems shift

and as local, state, and federal governments change, questions about the relationship

between American values and federalism naturally emerge. The different views that

people bring to this discussion suggest that federalism will remain a central issue in

American democracy.

90 CHAPTER 3 FEDErAL ISM

wtp12e_ess_ptr_ch03_066-095.indd 90 11/28/18 4:26 PM

*The voting-eligible population excludes noncitizens and people who are institutionalized or not allowed to vote in some states because they are ex-felons. The voting-age population includes everyone over 18.

NOTE: Oregon had an additional election in 2016 to �ll a vacancy.

SOURCES: Elect Project, electproject.org; Voter Turnout, elect.ky.gov; Post Election Statistics, electionstatistics.sos.la.gov; 2017 Results, state.nj.us; 2017 Results Report, elections.virginia.gov (accessed 3/10/18).

Turnout in Recent Gubernatorial Elections

New Jersey 39%

Missouri 62%

California 31%

Texas 28%

Florida 43%

Virginia 43%

Denver

24%

Houston

22%

San Antonio

10%

New York City

7%

Percentage of voting-eligible population*

Turnout in Most Recent Municipal Election Percentage of voting-age population in selected cities*

Median % of voters to turn out in the following years:

2015, 2017

Non-presidential, non-congressional

39%

2016

Presidential

65%

2014

Non-presidential, congressional

40%

Seattle 43%

Washington, D.C. 38%

Chicago

33%

Detroit

27%

Who Participates in State and Local Politics?

WHO PARTICIPATES?

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

wtp12e_ess_ptr_ch03_066-095.indd 91 11/28/18 4:26 PM

Practice Quiz

1. Which term describes the division of powers between the national govern- ment and the state governments? (p. 69) a) separation of powers b) federal system c) checks and balances d) expressed powers e) implied powers

2. Which amendment to the Constitution stated that the powers not delegated to the national government or prohibit- ed to the states were “reserved to the states”? (p. 70) a) First Amendment b) Fifth Amendment c) Tenth Amendment d) Fourteenth Amendment e) Twenty-Sixth Amendment

3. A state government’s authority to regulate the health, safety, and morals of its citizens is frequently referred to as (p. 70) a) the reserved power. b) the expressed power. c) the police power. d) the concurrent power. e) the implied power.

4. Which constitutional clause requires that states normally honor the public acts and judicial decisions of other states? (p. 71) a) privileges and immunities clause b) necessary and proper clause c) interstate commerce clause d) preemption clause e) full faith and credit clause

Attend a board of supervisors, city council, planning commission, or other local government meeting. Agendas and minutes will usually be available on county and city websites.

Attend a session of your local or state judiciary. Cases on the docket are available online, as are rules for attendance and behavior when the court is in session.

Get Involved in State and Local Politics

Visit the state capitol. If you make an appointment, you might be able to meet with your local representative. Committee meetings and hearings are generally open to the public, as are meetings of the legislature.

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

92 STUDY gU IDE

wtp12e_ess_ptr_ch03_066-095.indd 92 11/28/18 4:26 PM

5. Many states have amended their constitutions to guarantee that large cities will have the authority to man- age local affairs without interference from state government. This power is called (p. 72) a) home rule. b) preemption. c) devolution. d) states’ rights. e) new Federalism.

6. The relationship between the states and the national government from 1789 to 1937 is known as (p. 73) a) dual federalism. b) regulated federalism. c) states’ rights. d) cooperative federalism. e) new Federalism.

7. In which case did the Supreme Court create the potential for increased national power by ruling that Congress could use the necessary and proper clause to interpret its delegated powers broadly? (p. 75) a) United States v. Lopez b) Printz v. United States c) Loving v. Virginia d) McCulloch v. Maryland e) Gibbons v. Ogden

8. The process of returning more of the responsibilities of governing from the national level to the state level is known as (p. 80) a) dual federalism. b) devolution. c) preemption. d) home rule. e) incorporation.

9. The principle that allows the federal government to take over areas of regulation formerly overseen by states or local governments is called (p. 82) a) regulated federalism. b) preemption. c) devolution. d) “layer cake” federalism. e) exemption.

10. When state and local governments must conform to costly regulations or conditions in order to receive grants but do not receive reimbursements for their expenditures from the federal government it is called (p. 82) a) states’ rights. b) block grants. c) general revenue sharing. d) an unfunded mandate. e) redistributive programs.

11. To what does the term New Federalism refer? (pp. 85–86) a) the era of federalism initiated by

President roosevelt during the late 1930s

b) the national government’s regulation of state action through grants-in-aid

c) the type of federalism that uses categorical grants to influence state action

d) efforts to return more policy-making discretion to the states through the use of block grants

e) the recent emergence of local governments as important political actors

12. The Supreme Court’s decision in National Federation of Independent Business v. Sebelius was significant because (p. 88) a) it affirmed the federal government’s

absolute power to impose all-or- nothing conditions on state govern- ments attempting to receive federal funding.

b) it limited the federal government’s power to impose all-or-nothing conditions on state governments at- tempting to receive federal funding.

c) it struck down the individual mandate of the Affordable Care Act as a violation of the interstate commerce clause.

d) it eliminated the federal govern- ment’s ability to provide subsidies for health insurance coverage.

e) it invalidated the educational stand- ards and testing requirements imposed by the 2001 no Child Left Behind Act.

93STUDY gU IDE

wtp12e_ess_ptr_ch03_066-095.indd 93 11/28/18 4:26 PM

Key Terms

block grants (p. 85) federal grants-in-aid that allow states considerable discretion in how the funds are spent

categorical grants (p. 78) congressional grants given to states and localities on the condition that expenditures be limited to a problem or group specified by law

commerce clause (p. 75) Article I, Section 8, of the Constitution, which delegates to Congress the power “to regulate Commerce with foreign nations, and among the several States and with the Indian Tribes”; this clause was interpreted by the Supreme Court in favor of national power over the economy

concurrent powers (p. 70) authority pos- sessed by both state and national govern- ments, such as the power to levy taxes

cooperative federalism (p. 80) a type of federalism existing since the new Deal era in which grants-in-aid have been used strategically to encourage states and local- ities (without commanding them) to pursue nationally defined goals; also known as “intergovernmental cooperation”

devolution (p. 80) a policy to remove a program from one level of government by delegating it or passing it down to a lower level of government, such as from the national government to the state and local governments

dual federalism (p. 73) the system of gov- ernment that prevailed in the United States from 1789 to 1937 in which most funda- mental governmental powers were shared between the federal and state governments

expressed powers (p. 69) specific powers granted by the Constitution to Congress (Article I, Section 8) and to the president (Article II)

federal system (p. 69) a system of govern- ment in which the national government shares power with lower levels of govern- ment such as states

federalism (p. 69) a system of government in which power is divided, by a constitution, between the central (national) government and regional (state) governments

full faith and credit clause (p. 71) provision from Article Iv, Section 1, of the Constitution requiring that the states normally honor the public acts and judicial decisions that take place in another state

general revenue sharing (p. 85) the process by which one unit of government yields a portion of its tax income to another unit of government, according to an established formula; revenue sharing typically involves the national government providing money to state governments

grants-in-aid (p. 77) programs through which Congress provides money to state and local governments on the condition that the funds be employed for purposes defined by the federal government

home rule (p. 72) power delegated by the state to a local unit of government to manage its own affairs

implied powers (p. 69) powers derived from the necessary and proper clause of Article I, Section 8, of the Constitution; such powers are not specifically expressed but are implied through the expansive interpretation of delegated powers

necessary and proper clause (p. 69) provision from Article I, Section 8, of the Constitution providing Congress with the authority to make all laws necessary and proper to carry out its expressed powers

New Federalism (p. 85) attempts by presi- dents nixon and reagan to return power to the states through block grants

police power (p. 70) power reserved to the state government to regulate the health, safety, and morals of its citizens

94 STUDY gU IDE

wtp12e_ess_ptr_ch03_066-095.indd 94 11/28/18 4:26 PM

preemption (p. 82) the principle that allows the national government to override state or local actions in certain policy areas; in foreign policy, the willingness to strike first in order to prevent an enemy attack

privileges and immunities clause (p. 72) provision, from Article Iv, Section 2, of the Constitution, that a state cannot discrimi- nate against someone from another state or give its own residents special privileges

reserved powers (p. 70) powers, derived from the Tenth Amendment to the Constitu- tion, that are not specifically delegated to the national government or denied to the states

Derthick, Martha. Keeping the Compound Republic: Essays on American Federalism. Washington, DC: Brookings Institution Press, 2001.

Elazar, Daniel. American Federalism: A View from the States. 3rd ed. new York: Harper & row, 1984.

gerston, Larry n. American Federalism: A Concise Introduction. Armonk, nY: M. E. Sharpe, 2007.

Johnson, Kimberly S. Governing the American State: Congress and the New Federalism, 1877–1929. Princeton, nJ: Princeton University Press, 2007.

Kettl, Donald. The Regulation of American Federalism. Baltimore: Johns Hopkins University Press, 1987.

Mettler, Suzanne. Dividing Citizens: Gender and Federalism in New Deal Public Policy. Ithaca, nY: Cornell University Press, 1998.

Michener, Jamila. Fragmented Democracy: Medicaid, Federalism, and Unequal Politics. new York: Cambridge University Press, 2018.

Peterson, Paul E. The Price of Federalism. Washington, DC: Brookings Institution Press, 1995.

Pierceson, Jason. Same-Sex Marriage in the United States: The Road to the Supreme Court. Lanham, MD: rowman and Littlefield, 2014.

robertson, David Brian. Federalism and the Making of America. new York: routledge, 2011.

van Horn, Carl E. The State of the States. 4th ed. Washington, DC: CQ Press, 2005.

Zimmerman, Joseph. Contemporary American Federalism. 2nd ed. Albany: SUnY Press, 2009.

states’ rights (p. 76) the principle that the states should oppose the increasing authority of the national government; this principle was most popular in the period before the Civil War

unfunded mandates (p. 82) regulations or conditions for receiving grants that impose costs on state and local governments for which they are not reimbursed by the federal government

unitary system (p. 69) a centralized gov- ernment system in which lower levels of government have little power independent of the national government

For Further Reading

95STUDY gU IDE

wtp12e_ess_ptr_ch03_066-095.indd 95 11/28/18 4:26 PM

Civil Liberties and Civil Rights

040404 chapter

WHAT GOVERNMENT DOES AND WHY IT MATTERS In Portland in 2006, Simon Tam founded what Oregon Music News called

the first and only all Asian American dance-rock band, or “Chinatown Dance

Rock,” as the band prefers. The various members of the band are of Chinese,

Taiwanese, Vietnamese, and Filipino descent. In addition to playing at anime

conventions and cultural festivals, they are known for their community involve-

ment battling Asian stereotypes and supporting young Asian people.1

They are also known for a First Amendment case over the band’s name, The

Slants. The name has three sources. The first two reference the members’

“slant” on life and the guitar chords they use: “It actually sounds like a fun,

’80s, New Wave kind of band. And it’s a play on words. We can share our per-

sonal experiences about what it’s like being people of color—our own slant

on life, if you will. It’s also a musical reference. There are slant guitar chords

that we use in our music,” Tam said. The third source was a reclaiming and

repurposing of the old ethnic slur about Asian people. “We grew up and the

notion of having slanted eyes was always considered a negative thing,” Tam

wtp12e_ess_ptr_ch04_096-143.indd 96 11/28/18 4:27 PM

Civil Liberties and Civil Rights

The First Amendment protects Americans from government infringement on their right to free speech. In the case of the Slants, they used the First Amendment as grounds to re-appropriate a term deemed offensive for themselves and their cultures.

97

said. “Kids would pull their eyes back in a slant-eyed gesture to make fun of

us . . . I wanted to change it to something that was powerful, something that

was considered beautiful or a point of pride instead.”

The U.S. Patent and Trademark Office had a different view. Tam’s applica-

tion for a trademark on the band’s name was rejected as a violation of the

Disparagement Clause of the Lanham Act of 1946, which prohibits trade-

marks that disparage a racial or ethnic group. The denial stated that although

the “applicant, or even the entire band, may be willing to take on the disparag-

ing term as a band name, in what may be considered an attempt . . . to wrest

‘ownership’ of the term,” that “does not mean that all [Asian Americans]

share the applicant’s view.” The case ultimately went to the Supreme Court,

which in 2017 ruled unanimously that the disparagement clause violated the

First Amendment’s free speech clause. The band could keep the name.

Free speech, along with the freedoms of assembly, religion, and privacy,

are among the civil liberties contained in the Bill of Rights and elsewhere

in the Constitution. Thomas Jefferson said that a bill of rights “is what

wtp12e_ess_ptr_ch04_096-143.indd 97 11/28/18 4:27 PM

people are entitled to against every government on earth.” Note the wording:

against government. Civil liberties are protections from improper government

action. Civil rights, on the other hand, are positives—what the government

must do to guarantee equal citizenship and protect citizens from discrimina-

tion. Civil rights regulate who can participate in the political process and civil

society and how they can participate: for example, who can vote, who can

hold office, who can have a trial or serve on juries, and when and how

citizens can petition the government to take action. Civil rights also define

how people are treated in employment, education, and other aspects of

American society.

Liberties are limits on government action, and the courts are the institution

best situated to tell Congress, the president and state governments what they

may not do. Civil rights, though, involve the government’s obligation to act and

the evolution of civil rights required much more action on the part of Congress

and the president.

★ Explain the origins and evolution of the civil liberties in the Bill of Rights as they apply to the federal government and the states (pp. 99–103)

★ Describe how the First Amendment protects freedom of religion, speech, and the press (pp. 103–11)

★ Explore whether the Second Amendment means people have a right to own guns (pp. 112–13)

★ Explain the major rights that people have if they are accused of a crime (pp. 113–19)

★ Assess whether people have a right to privacy under the Constitution (pp. 119–20)

★ Trace the legal developments and social movements that expanded civil rights (pp. 120–30)

★ Describe how different groups have fought for and won protection of their civil rights (pp. 130–37)

CHAPTER GOALS

98 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 98 11/28/18 4:27 PM

The Origin of the Bill of Rights Lies in Those Who Opposed the Constitution

Since the early 1960s the Supreme Court has expanded considerably the scope of civil liberties, defined as indi- vidual rights and personal fr eedoms with which go vernments may not interfere; that is, they ar e protections

for Americans from the government. These liberties are constantly subject to judi - cial interpretation, and their provisions need to be safeguarded vigilantly, especially during times of war or a thr eat to national security, such as in the aftermath of the terrorist attacks of September 11, 2001.

Civil rights—protections of citizen equality provided by the government—have also expanded dramatically since the middle of the tw entieth centur y, when the African American struggle for equal rights took center stage. Many goals of the civil rights movement that once ar oused bitter contr oversy are now widely accepted as part of the American commitment to equal rights. B ut even today the question of what is meant by “equal rights” is hardly settled. To what extent can states mandate racial preferences in college admissions? D o transgender individuals hav e the right to use a public restroom based on their gender identification rather than their physi­ cal characteristics? What rights do undocumented immigrants possess? Although the United States was founded on the ideals of liber ty, equality, and democracy, its history of civil rights reveals a gap between these principles and actual practice.

When the first Congress under the ne wly ratified Constitution met in April 1789, the most important item of business was the proposal to add a bill of rights to the Constitution. S uch a pr oposal had been turned do wn with little debate in the waning days of the P hiladelphia Constitutional Conv ention in 1787, not because the delegates w ere against rights but because—as the F ederalists, led by Alexander H amilton, later argued—such a bill was “ not only unnecessar y in the pr oposed Constitution but would ev en be danger ous.”2 F irst, accor ding to Hamilton, a bill of rights would be irrelevant to a national government that was given only delegated powers in the first place. To put restraints on “powers which are not granted ” could pr ovide a pr etext for go vernments to claim mor e powers than were in fact granted: “F or why declar e that things shall not be done which there is no po wer to do?” 3 S econd, the Constitution was to H amilton and the Federalists a bill of rights in itself, containing provisions that amounted to a bill of rights without r equiring additional amendments (see Table 4.1). For example, Article I, Section 9, included the right of habeas corpus, a cour t order demanding that an individual in custody be br ought into cour t and sho wn the r eason for detention. This prohibits the government from depriving a person of liberty with- out explaining the reason before a judge.

Despite the power of Hamilton’s arguments, when the Constitution was submit- ted to the states for ratification, Antifederalists, most of whom had not been dele- gates in Philadelphia, picked up on the argument of Thomas Jefferson (who also had

Explain the origins and evolution of the civil liberties in the Bill of Rights as they apply to the federal government and the states

99The OR Ig IN OF B I LL OF R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 99 11/28/18 4:27 PM

not been a delegate) that the omission of a bill of rights was a major imper fection of the ne w Constitution. The Federalists conceded that for the document to gain ratification they would have to make an “unwritten but unequivocal pledge” to add a bill of rights.

The Bill of Rights might well have been titled the “Bill of Liberties” because the provisions that w ere incorporated in it w ere seen as defining a private spher e of personal liberty, free from governmental restrictions.4 As J efferson put it, a bill of rights “is what people are entitled to against every government on earth.” Note the wording: against government. Civil liberties are protections of citizens from improper government action. Some of these restraints are substantive liberties, which put lim- its on what the government shall and shall not have power to do—such as establish- ing a religion, quartering troops in private homes without consent, or seizing private property without just compensation. Other restraints are procedural liberties, which are restraints on how the government is supposed to act. These procedural liberties are usually gr ouped under the general category of due process of law, which is the right of every citizen to be protected against arbitrary action by national or state gov- ernments. It first appears in the Fifth Amendment provision that “no person shall be . . . deprived of life, liberty, or property, without due process of law.” For example, even though the government has the substantive power to declare certain acts to be crimes and to arrest and imprison persons who violate criminal laws, it may not do so without meticulously observing procedures designed to protect the accused per- son. The best-known procedural rule is that an accused person is presumed innocent until proven guilty. This rule does not question the go vernment’s power to punish someone for committing a crime; it questions only the way the government deter- mines who committed the crime. S ubstantive and pr ocedural r estraints together identify the realm of civil liberties.

TABLE 4.1

Rights in the Original Constitution (Not in the Bill of Rights)

CLAUSE RIGHT ESTABLISHED

Article I, Section 9 guarantee of habeas corpus

Article I, Section 9 Prohibition of bills of attainder

Article I, Section 9 Prohibition of ex post facto laws

Article I, Section 9 Prohibition against acceptance of titles of nobility, etc., from any foreign state

Article III guarantee of trial by jury in state where crime was committed

Article III Treason defined and limited to the life of the person convicted, not to the person’s heirs

100 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 100 11/28/18 4:27 PM

In contrast, civil rights are the obligations imposed on government to take positive action to protect citizens from any illegal actions by government agencies and by other private citizens. Civil rights did not become par t of the Constitution until 1868, with the adoption of the Fourteenth Amendment, which sought to provide for each citizen “the equal protection of the laws.”

THE FOURTEENTH AMENDMENT NATIONALIZED THE BILL OF RIGHTS THROUGH INCORPORATION

In the first 70 years of the countr y’s history, the B ill of Rights was understood to apply only to the national go vernment and not to the states. This meant that the actions of state governments were restricted only by their own state constitutions as interpreted by their own courts. In fact, the Supreme Court said this in a decision in 1833, Barron v. Baltimore.5 But the Civil War cast new light on the large question of state versus national governmental power. After the war, the Fourteenth Amend- ment was added to the Constitution. Part of the amendment reads as though it were meant to tell the states that they must now adhere to the Bill of Rights:

No State shall make or enfor ce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This language sounds like an effort to extend the B ill of Rights to all citiz ens, wherever they might reside.6 Yet this was not the Supreme Court’s interpretation of the amendment for nearly 100 y ears. Within five y ears of ratification of the Fourteenth Amendment, the Cour t was making decisions as though the amend - ment had never been adopted.7

The first change in civil liberties following the adoption of the Fourteenth Amend- ment came in 1897, when the Supreme Court held that the due process clause of the Fourteenth Amendment did in fact prohibit states from taking property for a public use without just compensation (a protection found in the Fifth Amendment), over- ruling the Barron case.8 However, the Supreme Court had selectively “incorporated” under the F ourteenth Amendment only the pr operty protection provision of the Fifth Amendment and no other clause of the Fifth or any other amendment of the Bill of Rights. I n other wor ds, although accor ding to the F ifth Amendment “due process” applied to the taking of life and liber ty as well as property, only property was incorporated into the Fourteenth Amendment as a limitation on state power.

No further expansion of civil liber ties via the Fourteenth Amendment occurred until 1925, when the S upreme Court held that fr eedom of speech is “ among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”9 In 1931 the Court added freedom of the pr ess to that shor t list pr otected by the B ill of Rights fr om state action; by 1939 it had added freedom of assembly and petitioning the government for redress of grievances.10 But that was as far as the Court was then willing to go.

101The OR Ig IN OF B I LL OF R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 101 11/28/18 4:27 PM

TABLE 4.2

Incorporation of the Bill of Rights into the Fourteenth Amendment

SELECTED PROVISIONS AND AMENDMENTS INCORPORATED KEY CASE

eminent domain (V) 1897 Chicago, Burlington, and Quincy R.R. v. Chicago

Freedom of speech (I) 1925 Gitlow v. New York

Freedom of press (I) 1931 Near v. Minnesota

Free exercise of religion (I) 1934 Hamilton v. Regents of the University of California

Freedom of assembly (I) and freedom to petition the government for redress of grievances (I)

1937 DeJonge v. Oregon

Freedom of assembly (I) 1939 Hague v. CIO

Nonestablishment of state religion (I) 1947 Everson v. Board of Education

Freedom from unnecessary search and seizure (IV)

1949 Wolf v. Colorado

Freedom from warrantless search and seizure (IV; “exclusionary rule”)

1961 Mapp v. Ohio

Freedom from cruel and unusual punishment (VIII)

1962 Robinson v. California

Right to counsel in any criminal trial (VI) 1963 Gideon v. Wainwright

Right against self-incrimination and forced confessions (V)

1964 Malloy v. Hogan; Escobedo v. Illinois

Right to counsel and to remain silent (V) 1966 Miranda v. Arizona

Right against double jeopardy (V) 1969 Benton v. Maryland

Right to bear arms (II) 2010 McDonald v. Chicago

As Table 4.2 shows, selective incorporation—the process by which different protec- tions in the B ill of Rights w ere incorporated or applied to the states, par t by part, using the Fourteenth Amendment, thus guaranteeing citizens’ protection from state as well as national government—continued to occur gradually until 2010. The final provision of the B ill of Rights to be incorporated by the Supreme Cour t was the Second Amendment, which protects the right to bear arms. 11 (Incorporation is also sometimes referred to as the “absorption” or the “nationalizing” of the Bill of Rights.)

102 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 102 11/28/18 4:27 PM

To make clear that “ selective incorporation” should be narr owly interpr eted, Justice B enjamin Car dozo, writing for an 8–1 majority in 1937, asser ted that although many rights hav e value and impor tance, some rights do not r epresent a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” So, until 1961, only the First Amendment and one clause of the Fifth Amendment had been clearly incorporated into the Fourteenth Amend- ment as binding on the states as well as on the national government.12

The best way to examine the Bill of Rights today is the simplest way: to take each of the major provisions one at a time. S ome of these provisions are settled areas of law; others are not.

The First Amendment Guarantees Freedom of Religion, Speech, and the Press

Congress shall make no law respecting an establishment of r eligion, or pr ohibiting the fr ee ex ercise ther eof; or abridging the fr eedom of speech, or of the pr ess; or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances.

FREEDOM OF RELIGION

The Bill of Rights begins by guaranteeing freedom of religion, and the First Amend- ment provides for that fr eedom in two distinct clauses: “Congr ess shall make no law (1) respecting an establishment of r eligion, or (2) pr ohibiting the free exercise thereof.” The first clause is called the “establishment clause,” and the second is called the “free exercise clause.”

Separation between Church and State Comes from the First Amendment The establishment clause and the idea of “ no law” regarding the establishment of religion can be interpr eted in several ways. One interpretation, which probably reflects the views of many of the First Amendment’s authors, is that the govern- ment is pr ohibited from establishing an official church. Official state churches, such as the Chur ch of E ngland, were common in the eighteenth centur y and were viewed by many Americans as inconsistent with a republican form of gov- ernment. Indeed, many American colonists had fled Europe to escape persecu - tion for having r ejected state -sponsored chur ches. A second interpr etation is the vie w that the go vernment may not take sides among competing r eligions but may pr ovide assistance to r eligious institutions or ideas as long as it sho ws no favoritism. The United States accommodates r eligious beliefs in a variety of ways, from the reference to God on U.S. currency to the prayer that begins every session of Congress. These forms of establishment have never been struck down by the courts.

Describe how the First Amendment protects freedom of religion, speech, and the press

103FReeDOM OF ReL Ig ION , SPeeCh , AND The PReSS

wtp12e_ess_ptr_ch04_096-143.indd 103 11/28/18 4:27 PM

The third vie w r egarding r eligious establishment, the most commonly held today, is the idea of a “ wall of separation ” between church and state—J efferson’s formulation—that cannot be br eached b y the go vernment. F or two centuries, Jefferson’s words have had a po werful impact on our understanding of the pr oper relationship between church and state in America.

Despite the seeming absoluteness of the phrase “wall of separation,” there is ample room to disagree on how high or strong this wall is. For example, the Court has been consistently strict in the area of public education in cases of school pray er, striking down such practices as Bible reading,13 nondenominational prayer,14 reading prayers over a public address system during a football game,15 and even a moment of silence for meditation.16 In each of these cases, the Cour t reasoned that school -sponsored religious observations, even if nondenominational, ar e highly suggestiv e of school sponsorship and therefore violate the prohibition against establishment of religion. On the other hand, the Cour t has been quite permissiv e (and some would say inconsistent) about the public display of r eligious symbols, such as city -sponsored Nativity scenes in commer cial or municipal ar eas.17 And although the Cour t has consistently disapproved of government financial support for religious schools, even when the purpose has been purely educational and secular, it has permitted certain direct aid to students of such schools in the form of busing, for example.

The difficulty in defining what religious establishment means is evident from two cases in 2005 involving government-sponsored displays of religious symbols. In Van Orden v. Perry, the Court decided by a 5–4 margin that a display of the Ten Com- mandments at the Texas State Capitol did not violate the Constitution.18 However, in McCreary v. ACLU of Kentucky, decided at the same time and also b y a 5–4 margin, the Court determined that a display of the Ten Commandments inside two Kentucky courthouses was unconstitutional.19 Justice Stephen Breyer, the swing vote in the two cases, said that the displays in Van Orden had a secular purpose, whereas the displays in McCreary had a purely religious purpose. The key difference between the two cases is that the Texas display had been exhibited in a large par k for 40 y ears with other monuments r elated to the dev elopment of American law without any objections raised until this case, whereas the Kentucky display was erected much more recently and initially by itself, suggesting to some justices that its posting had a religious pur- pose. But most observers saw little difference between the two cases. Clearly, the issue of government-sponsored displays of religious symbols has not been settled.

Free Exercise of Religion Means You Have a Right to Your Beliefs The free exercise clause pr otects the citiz en’s right to believ e and to practice any religion; it also protects the right to choose not to practice a religion. The precedent- setting case involving free exercise is West Virginia State Board of Education v. Barnette (1943), which inv olved the childr en of a family of J ehovah’s Witnesses who refused to salute and pledge allegiance to the American flag on the grounds that their religious faith did not permit it. Three years earlier, the Court had upheld such a r equirement and had permitted schools to expel students for r efusing to salute the flag. But the entry of the United States into a war to defend democracy , coupled with the ugly treatment to which the Jehovah’s Witnesses children had been

104 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 104 11/28/18 4:27 PM

subjected, induced the Court to reverse itself and to endorse the fr ee exercise of r eligion even when it may be offensive to the beliefs of the majority.20

In r ecent y ears, the principle of fr ee exercise has been bolster ed by statutes pr o- hibiting r eligious discrimination b y public and priv ate entities in a v ariety of r ealms including hiring, land use, and the tr eatment of prison inmates. Two recent cases illustrat- ing this point ar e Holt v. Hobbs and Burwell v. Hobby Lobby Stores.21 The Holt case involved a Muslim prisoner in an Ar kansas jail. The prisoner, Gregory Holt, asserted that his reli- gious beliefs r equired him to gr ow a bear d. Thus, according to Holt, an Arkansas prison policy prohibiting beards was a violation of his ability to exercise his religion. The Court held that the prison policy was a violation of the fr ee exercise clause and violated a federal statute designed to protect the ability of prisoners to worship as they pleased. The Hobby Lobby case involved the owners of a chain of craft stor es who claimed that a section of the Affordable Care Act requiring employers to provide their female employees with fr ee contraceptive coverage violated their r eligious beliefs as pr o- tected by the Religious Freedom Restoration Act. This law requires the government to prove a “compelling interest” for requiring individuals to obey a law that violates their religious beliefs. The Supreme Court ruled in favor of Hobby Lobby.

THE FIRST AMENDMENT AND FREEDOM OF SPEECH AND OF THE PRESS ENSURE THE FREE EXCHANGE OF IDEAS

Congress shall make no law . . . abridging the freedom of speech, or of the press.

Freedom of speech and of the pr ess hav e a special place in American political thought. To begin with, democracy depends upon the ability of individuals to talk to one another and to disseminate information. A democratic nation could not function without fr ee and open debate. S uch debate, mor eover, is seen as an essential mechanism for determining the quality or validity of competing ideas. As J ustice O liver Wendell H olmes said, “The best test of truth is the po wer of the thought to get itself accepted in the competition of the mar ket . . . that at any rate is the theory of our Constitution.”22 What is sometimes called the “marketplace of ideas” receives a good deal of pr otection from the cour ts. In 1938 the Supreme Court held that any legislation that attempts to r estrict these funda- mental freedoms “is to be subjected to a more exacting judicial scrutiny . . . than are most other types of legislation. ”23 This higher standard of judicial r eview came to be called strict scrutiny.

Does religious freedom lead to discrimina- tion on the basis of religion? Here, senior counsel for Hobby Lobby Stores speaks to supporters after the Supreme Court ruled that businesses were not required to pro- vide free contraceptive coverage if they find it in violation of their religious beliefs.

105FReeDOM OF ReL Ig ION , SPeeCh , AND The PReSS

wtp12e_ess_ptr_ch04_096-143.indd 105 11/28/18 4:27 PM

The doctrine of strict scrutiny places a heavy bur den of proof on the go vern- ment if it seeks to r egulate or restrict speech. Americans are assumed to have the right to speak and to broadcast their ideas unless some compelling r eason can be identified to stop them. But strict scrutiny does not mean that speech can nev er be regulated. According to the courts, although virtually all speech is protected by the Constitution, some forms of speech are entitled to a greater degree of protec- tion than others.

POLITICAL SPEECH IS CONSISTENTLY PROTECTED

Over the past 200 years the courts have scrutinized many different forms of speech and constructed different principles and guidelines for each. And of all forms of speech, political speech is the most consistently protected.

Political speech was the activity of greatest concern to the framers of the Con- stitution, ev en though some found it the most difficult provision to tolerate. Within sev en y ears of the ratification of the Bill of Rights in 1791, Congr ess adopted the infamous Alien and Sedition Acts, which, among other things, made it a crime to say or publish anything that might tend to defame or bring into disrepute the government of the United States. Quite clearly, the acts’ intentions were to criminalize the very thing protected by the First Amendment—political speech. Fifteen violators, including several newspaper editors, were indicted; and a few were actually convicted before the relevant portions of the acts were allowed to expire.

The first modern free speech case ar ose immediately after World War I. I t involved persons who had been convicted under the federal Espionage A ct of 1917 for opposing U.S. involvement in the war. The Supreme Court upheld the Espionage Act and refused to protect the speech rights of the defendants on the grounds that their activities—appeals to draftees to resist the draft—constituted a “clear and present danger” to national security.24 This is the first and most famous, though since discarded, “test” for when go vernment intervention or censorship can be permitted.

It was only after the 1920s that r eal progress toward a genuinely effective First Amendment was made. Since then, the courts have consistently protected political speech even when it has been deemed “insulting” or “outrageous.”

SYMBOLIC SPEECH, SPEECH PLUS, ASSEMBLY, AND PETITION ARE HIGHLY PROTECTED

The First Amendment treats the freedoms of religion and political speech as equal to the fr eedoms of assembly and petition—speech associated with action. F ree- dom of speech and fr eedom of assembly ar e closely related by the “public forum doctrine.” In the 1939 case of Hague v. Committee for Industrial Organization, the Court declar ed that the go vernment may not pr ohibit speech -related activities such as demonstrations or leafleting in public areas traditionally used for that

106 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 106 11/28/18 4:27 PM

purpose, though, of course, the go vernment may impose r ules designed to pr o- tect the public safety so long as these r ules do not discriminate against par ticular viewpoints.25

Generally, the Supreme Court has protected actions that are designed to send a political message. Thus, the Court held unconstitutional a California statute making it a felony to display a red Communist flag “as a sign, symbol or emblem of opposi- tion to organized government.”26

Another example is the burning of the American flag as a symbol of protest. In 1984, at a political rally held during the Republican National Convention in Dallas, Texas, a political pr otester burned an American flag, thereby violating a Texas law that prohibited desecration of a venerated object. The Supreme Court declared the Texas law unconstitutional on the grounds that flag burning was expressive conduct protected by the First Amendment.27

In the 2011 case of Snyder v. Phelps, the Cour t continued to pr otect symbolic speech. Members of the Westboro Baptist Church had frequently demonstrated at military funerals, claiming that the deaths of soldiers w ere a sign that G od disap- proved of acceptance of homosexuality in the United States. They carried signs that included slogans like “Thank God for dead soldiers.” The father of a soldier killed in Iraq brought suit against the church and its pastor, claiming that the demonstrators had caused him and his family severe emotional distress. The Supreme Court ruled, however, that the First Amendment protected this form of speech in a public place against such suits.28

Should the First Amendment’s protection of free speech apply even when that speech is seen as offensive? The Supreme Court ruled that members of the Westboro Baptist Church had a right to picket soldiers’ funerals to demonstrate what they take as a sign of God’s disapproval of homosexuality.

107FReeDOM OF ReL Ig ION , SPeeCh , AND The PReSS

wtp12e_ess_ptr_ch04_096-143.indd 107 11/28/18 4:27 PM

Closer to the original intent of the assembly and petition clause is the categor y of “ speech plus ”—speech accompanied b y conduct or physical activity such as sit-ins, picketing, and demonstrating; protection of this form of speech under the First Amendment is conditional, and restrictions imposed by state or local author- ities are acceptable if pr operly balanced by considerations of public or der. Courts consistently protect such assemblies under the F irst Amendment; state and local laws r egulating such activities ar e closely scr utinized and fr equently overturned. But the same assembly on private property is quite another matter and can in many circumstances be regulated. For example, the dir ectors of a shopping center can lawfully prohibit an assembly pr otesting a war or suppor ting a ban on abor tion. Assemblies in public areas can also be r estricted in some circumstances, especially when the assembly or demonstration jeopar dizes the health, safety , or rights of others. This condition was the basis of the Supreme Court’s decision to uphold a lower-court order that restricted the access abortion protesters had to the entrances of abortion clinics.29

Speech by Public School Students One group that seems to enjoy only a limited right of fr ee speech is public school students. I n 1986 the S upreme Court upheld the punishment of a high school student for making sexually suggestive speech. The Court opinion held that such speech inter fered with the school ’s goal of teaching students the limits of socially acceptable behavior .30 Two years later, the S upreme Court restricted student speech and pr ess rights ev en further by defining them as part of the educational pr ocess, not to be tr eated with the same standar d as adult speech in a regular public forum.31 In the 2007 case of Morse v. Frederick, the Court held that a principal did not violate a student ’s free speech rights b y suspending him for displaying a banner pr oclaiming “BONG HiTS 4 JESUS.”32 The decision affirmed that school officials can censor student speech that advocates or celebrates the use of illegal drugs.

FREEDOM OF THE PRESS IS BROAD

For all practical purposes, fr eedom of speech implies and includes fr eedom of the pr ess. With the ex ception of the br oadcast media, which ar e subject to federal regulation, the press is protected under the doctrine against prior restraint (efforts by a governmental agency to block the publication of material it deems libelous or harmful in some other way; otherwise kno wn as “censorship”). Beginning with the landmark 1931 case of Near v. Minnesota, the U.S. Supreme Court has held that, ex cept under the most extraor dinary cir cumstances, the First Amendment of the Constitution pr ohibits go vernment agencies fr om seeking to pr event ne wspapers or magazines fr om publishing whatev er they wish.33 In the case of New York Times v. United States (1971), the so -called Pentagon P apers case, the S upreme Cour t r uled that the go vernment could not block publication of secr et D efense D epartment documents giv en to the New York Times b y an opponent of the Vietnam War who had obtained the documents illegally.34

108 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 108 11/28/18 4:27 PM

Another press freedom issue is the question of whether journalists can be com - pelled to r eveal their sour ces of information. J ournalists assert that if they cannot promise to keep the confidentiality of their sources, the flow of information will be r educed and pr ess fr eedom effectively cur tailed. G overnment agencies, ho w- ever, asser t that the names of ne ws sour ces may be r elevant to criminal or ev en national security inv estigations. N early all states hav e “ shield laws ” that to varying degrees protect journalistic sources. There is, however, no federal shield law, and the S upreme Court has held that the pr ess has no constitutional right to withhold information in court.35 In 2005, Judith Miller, a New York Times reporter, was jailed for contempt of court for refusing to tell a federal grand jury the name of a confidential source in a case inv olving the leaked identity of the CIA analyst Valerie Plame. Plame’s husband, J oseph Wilson, had been critical of the B ush administration’s Iraq policies.

SOME SPEECH HAS ONLY LIMITED PROTECTION

At least four categories of speech fall outside the guarantees of the F irst Amend- ment and therefore outside the r ealm of absolute pr otection: (1) libel and slander , (2) obscenity and pornography , (3) fighting words, and (4) commer cial speech. I t should be emphasized once again that these types of speech still enjo y considerable protection by the courts.

Libel and Slander If a written statement is made in “reckless disregard of the truth” and is considered damaging to the victim because it is “ malicious, scandalous, and defamatory,” it can be punished as libel. If an oral statement of such a nature is made, it can be punished as slander.

Today, most libel suits involve freedom of the press, and the realm of free press is enormous. Historically, newspapers were subject to the law of libel, which provided that newspapers that printed false and malicious stories could be compelled to pay damages to those they defamed. In recent y ears, however, American cour ts hav e greatly narrowed the meaning of libel and made it extr emely difficult, particularly for politicians or other public figures, to win a libel case against a ne wspaper. In the important 1964 case of New York Times v. Sullivan, the Court held that to be deemed libelous, a stor y about a public official not only had to be untrue but also had to result from “actual malice” or “reckless disregard” for the truth.36 In other words, the newspaper had to print false and malicious material deliberately. In prac- tice, this is a very difficult legal standard to meet.

With the emergence of the internet as an impor tant communications medium, the courts have had to decide how traditional libel law applies to internet content. In 1995 the N ew York cour ts held that an online bulletin boar d could be held responsible for the libelous content of material posted b y a third party. To protect internet service providers, Congress subsequently enacted legislation absolving them of responsibility for third-party posts. The federal courts have generally upheld this law and declared that service providers are immune from suits regarding the content of material posted by others.37

109FReeDOM OF ReL Ig ION , SPeeCh , AND The PReSS

wtp12e_ess_ptr_ch04_096-143.indd 109 11/28/18 4:27 PM

Obscenity and Pornography If libel and slander cases can be difficult because of the problem of determining the tr uth of statements and whether those statements are malicious and damaging, cases involving pornography and obscenity can be even trickier. Not until 1957 did the Supreme Court confront these issues, and it did so with a definition of obscenity that may hav e caused more confusion than it clear ed up. Justice William Brennan, in writing the Cour t’s opinion, defined obscenity as speech or writing that appeals to the “ prurient interest”—that is, whose purpose is to excite lust as this appears “ to the av erage person, applying contemporar y com- munity standards.” Even so, B rennan added, the wor k should be judged obscene only when it is “ utterly without r edeeming social impor tance.”38 In 1964, J ustice Potter Stewart confessed that, although he found pornography impossible to define, “I know it when I see it.”39

An effort was made to strengthen the restrictions in 1973, when the Supreme Court expressed its willingness to define pornography as a work that (1) as a whole, is deemed pr urient by the “average person” according to “community standards”; (2) depicts sexual conduct “in a patently offensive way”; and (3) lacks “serious literar y, ar tistic, political, or scientific value.” This definition meant that pornography would be determined by local rather than national standar ds. Thus, a local bookseller might be prosecuted for selling a volume that was a best- seller nationally but that was deemed pornographic locally .40 This new defini- tion of standards did not help much either , and not long after 1973 the Cour t began again to review all such community antipornography laws, reversing most of them.

In r ecent y ears, the battle against obscene speech has targeted “ cyberporn,” pornography on the internet. O pponents of this form of expr ession argue that it should be banned because of the easy access childr en have to the internet. The first major effort to regulate the content of the internet occurred in 1996, when Congress passed the Communications D ecency Act (CDA), designed to r egulate the online transmission of obscene material. The constitutionality of the CDA was immediately challenged in cour t by a coalition of inter ests led b y the American Civil Liber ties Union (ACLU). In the 1997 Supreme Court case of Reno v. ACLU, the Court struck down the CDA, r uling that it suppr essed speech that “ adults have a constitutional right to r eceive,” saying that “ the lev el of discourse r eaching the mailbo x simply cannot be limited to that which would be suitable for a sandbox.” Supreme Court justice John Paul Stevens described the internet as the “ town crier” of the modern age and said that the internet was entitled to the greatest degree of First Amendment protection possible.41 By contrast, radio and television are subject to mor e control than the internet. In 2008 the Supreme Court upheld a law that made it a crime to sell child pornography on the internet.42

In 2000 the Supreme Court extended the highest degree of First Amendment protection to cable (not broadcast) television. In United States v. Playboy Entertain- ment Group, the Court struck down a portion of the 1996 Telecommunications Act that required cable TV companies to limit the br oadcast of sexually explicit programming to late -night hours. In its decision, the Cour t noted that the law already pr ovided par ents with the means to r estrict access to sexually explicit

110 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 110 11/28/18 4:27 PM

cable channels thr ough various blocking devices. M oreover, such pr ogramming could come into the home only if par ents decided to purchase such channels in the first place.43

Closely related to the issue of obscenity is the matter of violent broadcast content. Here, too, the Cour t has generally upheld fr eedom of speech. For example, in the 2011 case of Brown v. Entertainment Merchants Association the Court struck down a California law banning the sale of violent video games to children, saying that the law violated the First Amendment.44

Fighting Words Speech can also lose its protected position when it moves toward the sphere of action. “E xpressive speech,” for example, is pr otected until it mo ves from the symbolic realm to the r ealm of actual conduct—to direct incitement of damaging conduct with the use of so -called fighting words. In 1942 a man called a police officer a “goddamned racketeer ” and “ a damn F ascist” and was arr ested and convicted of violating a state law forbidding the use of offensive language in public. When his case reached the Supreme Court, the arrest was upheld on the grounds that the F irst Amendment pr ovides no pr otection for such offensive language because such words “are no essential part of any exposition of ideas.”45 This decision was r eaffirmed in the important 1951 case of Dennis v. United States, in which the Supreme Court held that there is no substantial public interest in permit- ting certain kinds of utterances: the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate br each of the peace. 46 S ince that time, ho wever, the Supreme Court has reversed almost every conviction based on arguments that the speaker had used “fighting words.”

Commercial Speech Commercial speech, such as ne wspaper or television adv er- tisements, has only par tial First Amendment protection because it cannot be con - sidered political speech. I nitially considered to be entir ely outside the pr otection of the First Amendment, commercial speech is subject to r egulation, although it is also recognized and protected for the par t it plays in the fr ee flow of information. For example, pr ohibition of false and misleading adv ertising by the Federal Trade Commission is an old and well-established power of the federal government. The Supreme Court long ago approved the constitutionality of laws prohibiting elec- tronic media from carrying cigarette advertising.47 It has also upheld city ordinances prohibiting the posting of all signs on public property (as long as the ban is total so that there is no hint of censorship).48

However, the gains outw eigh the losses in the effort to expand the pr otection of commer cial speech under the F irst Amendment. F or example, in 1996 the Court struck down Rhode Island laws and regulations banning the advertisement of liquor prices, 49 and in 2001 the Cour t overturned a M assachusetts ban on all cigarette adv ertising as violations of the F irst Amendment. 50 These instances of commercial speech indicate the breadth and depth of the freedom today to direct appeals to a large public, to sell goods and ser vices, and to mobilize people for political purposes.

111FReeDOM OF ReL Ig ION , SPeeCh , AND The PReSS

wtp12e_ess_ptr_ch04_096-143.indd 111 11/28/18 4:27 PM

The Second Amendment Now Protects an Individual’s Right to Own a Gun

The Second Amendment was included in the B ill of Rights to pr o- vide for “ well-regulated” militias to enforce the “security of a free State,” which were to be the backing of the

government for the maintenance of local public order and national defense. Militia was understood to be a military or police resource for state and the national govern- ments; militias were distinguished from professional armies, which came within the sole constitutional jurisdiction of Congress. While the right of the people “ to keep and bear Arms” was linked to citizen service in militias, many have argued that the Second Amendment also establishes an individual right to bear arms.

A 1939 Supreme Court case upheld a federal gun law in which the Court con- cluded that the S econd Amendment per tained to “ the pr eservation or efficiency of a well regulated militia,”51 but the Cour t made no fur ther Second Amendment decisions for nearly 70 years. Thus, states and localities across the country have very different gun ownership standards. For instance, in Wyoming there is no ban on any type of gun and no permit is r equired for carr ying a concealed w eapon. In California, by contrast, the possession of assault w eapons is banned and a permit is required to carr y a concealed w eapon. Figure 4.1 sho ws the backgr ound check requirements to purchase a firearm across the country.

The Court’s silence on the application of the S econd Amendment ended in 2008, when it made the first of two rulings in fav or of expansive rights of gun ownership by individuals. The case of District of Columbia v. Heller challenged a Washington, D.C., law that banned handguns. In a 5–4 decision, the Court ruled that the Second Amendment provides a constitutional right to keep a loaded handgun at home for self-defense. The dissenting opinion asserted that the Second Amendment only pr o- tects the rights of individuals to bear arms as part of a militia force, not in an individual capacity.52 Because the District of Columbia is an entity of the federal government, the ruling did not apply to state firearm laws. However, in the 2010 case of McDonald v. Chicago, the Court applied the Second Amendment to the states, making this decision the first new incorporation decision by the Court in 40 years (see Table 4.2). The case concerned a Chicago ordinance that made it extremely difficult to own a gun within city limits, and the Court’s ruling had the effect of overturning the law.53

Despite these rulings, the debate over gun control continues to loom large. A series of tragic shootings in r ecent years—including the killing of 20 elementar y school students in Newtown, Connecticut; 50 people at a gay nightclub in Orlando, Florida; 59 people at a concert in Las Vegas, Nevada; and 17 people at a high school in Parkland, Florida—has kept the issue of gun laws firmly on the national agenda. Proponents of gun control point to these shootings as evidence of the need to restrict the availability of firearms, while opponents of gun contr ol say that shooting inci - dents demonstrate that Americans are not safe and should be free to carry guns for self-protection.

Explore whether the Second Amendment means people have a right to own guns

112 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 112 11/28/18 4:27 PM

Rights of the Criminally Accused Are Based on Due Process of Law

Except for the F irst Amendment, most of the battle to apply the B ill of Rights to the states was fought over the v arious pr otections granted to

individuals who ar e accused of a crime, who ar e suspects in the commission of a crime, or who are brought before the cour t as a witness to a crime. The Fourth, Fifth, S ixth, and E ighth amendments, taken together, are the essence of the due process of law, even though this key phrase does not appear until the very last words of the Fifth Amendment.

FIGURE 4.1

Background Checks on Firearm Sales Although state gun laws must conform to the Second Amendment as interpreted by the U.S. Supreme Court, laws concerning gun sales and ownership vary widely from state to state. It is much more difficult to buy a gun in, say, New York or California than in Texas or Kentucky. This map shows states that require criminal background checks for the sale of all firearms, only handguns, or none when purchasing firearms. While federal law requires background checks when purchasing a firearm from a licensed seller, only 21 states require them from unlicensed sellers as well.

*An answer of N/A indicates the state does not require criminal background checks for gun sales by unlicensed sellers.

SOURCE: Background Checks, Gun Law Navigator, www.everytownresearch.org/ (accessed 6/12/18).

AK

HI

All �rearms Only handguns *N/A

WA

OR

CA

NV UT

NM

TX

KS

NE

WY

CO

AZ

MS AL

SD

IA

WI

MN

IL

NDMT

ID

KY

IN

MI

TN

VA

FL

ME

NY

WV

LA

AR

MO

SC

GA

NC

PA OH

OK

DC MD DE NJ

VT

RI CT

MA NH

Explain the major rights that people have if they are accused of a crime

113R IghTS OF The CR IM INALLY ACCUSeD

wtp12e_ess_ptr_ch04_096-143.indd 113 11/28/18 4:27 PM

THE FOURTH AMENDMENT PROTECTS AGAINST UNLAWFUL SEARCHES AND SEIZURES

The right of the people to be secure in their persons, houses, papers, and effects, against unrea- sonable searches and seizur es, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The purpose of the Fourth Amendment is to guarantee the security of citiz ens against unreasonable (that is, improper) searches and seizures. In 1990 the Supreme Court summarized its understanding of the Fourth Amendment brilliantly and suc- cinctly: “A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.”54 But how are we to define what is reasonable and what is unreasonable?

The 1961 case of Mapp v. Ohio illustrates one of the most impor tant principles that has grown out of the Fourth Amendment: the exclusionary rule, which is the abil- ity of courts to exclude evidence obtained in violation of the F ourth Amendment, such as barring evidence obtained during an illegal sear ch from being intr oduced in a trial. Acting on a tip that Dollree Mapp was harboring a suspect in a bombing incident, several police officers forcibly entered Mapp’s house claiming they had a warrant to look for the bombing suspect. The police did not find the bombing sus- pect but did find some materials connected to the local numbers racket (an illegal gambling operation) and a quantity of “obscene materials,” in violation of an Ohio law banning possession of such materials. Although no warrant was ever produced, the evidence that had been seized was admitted by a court and Mapp was convicted for illegal possession of obscene materials.

By the time Mapp’s appeal reached the Supreme Court, the question was whether any evidence pr oduced under the cir cumstances of the sear ch of her home was admissible. The Court’s opinion affirmed the exclusionary rule: under the Fourth Amendment (applied to the states thr ough the Fourteenth Amend- ment), “all evidence obtained by searches and seizures in violation of the Consti- tution . . . is inadmissible.”55 This means that even people who are clearly guilty of the crime of which they are accused must not be convicted if the only evidence for their conviction was obtained illegally.

The exclusionary rule is the most dramatic r estraint imposed by the cour ts on police behavior because it rules out precisely the evidence that produces a convic- tion; it fr ees those people who ar e known to hav e committed the crime of which they hav e been accused because the evidence was obtained impr operly, though few convictions ar e actually lost because of ex cluded evidence. B ecause it wor ks so dramatically in fav or of persons kno wn to have committed a crime, the Cour t has since softened the application of the r ule. In recent years, the federal cour ts have relied upon a discretionary use of the exclusionary rule, whereby they make a judgment as to the “nature and quality of the intrusion.” It is thus difficult to know ahead of time whether a defendant will or will not be pr otected from an illegal search under the F ourth Amendment. 56 Several r ecent cases hav e imposed strict

114 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 114 11/28/18 4:27 PM

interpretations of a r easonable search. In 2013 the Court held that the use of a dr ug-sniffing dog on the front porch of a home constituted an improper search in the absence of consent or a warrant.57

Changes in technology hav e also had an impact on Fourth Amendment jurisprudence. In the 2012 case of United States v. Jones, the Court held that pr osecutors violated J ones’s rights when they attached a G lobal Position- ing System device to his J eep and monitor ed his mo vements for 28 days. 58 O n the other hand, in Maryland v. King , the Cour t upheld DNA testing of arrestees without the need for individualized suspicion. The Court charac - terized DNA testing as an administrativ e tool for identifying the arr estee and thus as legally indistinguishable fr om photographing and fingerprinting.59 In the 2014 case of Riley v. California, the Cour t held that the police w ere constitutionally prohibited from seizing and sear ching the digital contents of a cell phone during an arr est.60 As new technologies dev elop, the Cour t will continue to face the question of what constitutes a reasonable search. In 2016 the Federal Bureau of Investigation (FBI) sought to compel the A pple Corporation to unlock the cell phone used b y Syed Farook, an alleged terrorist who, along with his wife Tashfeen M alik, killed 14 people in S an Bernardino, California. A pple asserted that cr eating new soft- ware to enable the FBI to unlock the phone would allow the agency to invade the privacy of millions of iPhone users. The case became moot when the FBI was able to unlock the phone without Apple’s help.

Finally, the Fourth Amendment places limits on government surveillance of individuals, an ongoing and controversial issue in the United States today. For example, a federal judge in Washington, D.C., recently ruled that a National Secu- rity Agency (NSA) program that collected millions of records of telephone calls was impermissible under the Fourth Amendment.61

THE FIFTH AMENDMENT COVERS COURT-RELATED RIGHTS

No person shall be held to answ er for a capital, or other wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the M ilitia, when in actual ser vice in time of War or public danger; nor shall any per - son be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due pr ocess of law; nor shall priv ate property be taken for public use, without just compensation.

Under what circumstances can the police search an individual’s car? The Fourth Amendment protects against “unreasonable searches and seizures,” but the Supreme Court has had to interpret what is unreasonable.

115R IghTS OF The CR IM INALLY ACCUSeD

wtp12e_ess_ptr_ch04_096-143.indd 115 11/28/18 4:27 PM

Grand Juries The first clause of the Fifth Amendment sets for th the right to a grand jury to determine whether a trial is warranted; grand juries do not r ule on the accused’s guilt or innocence. Grand juries play an important role in federal criminal cases. However, the provision for a grand jury is the one important civil liberties pro- vision of the Bill of Rights that was not incorporated by the Fourteenth Amendment to apply to state criminal pr osecutions. Thus, some states operate without grand juries. In such states, the pr osecuting attorney simply files a “bill of information,” affirming that there is sufficient evidence available to justify a trial. I f the accused person is to be held in custody, the prosecutor must take the available information before a judge to determine that the evidence shows probable cause.

Double Jeopardy “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb” is the constitutional protection from double jeopardy, a protection to prevent a person from being tried more than once for the same crime. The protection from double jeopardy was at the hear t of the Palko v. Con- necticut case in 1937. In that case, a Connecticut court had found Frank Palko guilty of second-degree murder and sentenced him to life in prison. U nhappy with the verdict, the state of Connecticut appealed the conviction to its highest state court, won the appeal, got a ne w trial, and then succeeded in getting P alko convicted of first-degree murder. Palko appealed to the Supreme Court on what seemed an open- and-shut case of double jeopar dy. Yet, although the majority of the Cour t agreed that this could indeed be consider ed a case of double jeopar dy, they decided that double jeopardy was not one of the provisions of the Bill of Rights incorporated in the Fourteenth Amendment as a restriction on the powers of the states.62 Palko was executed for the crime in 1938, because he lived in Connecticut rather than in a state whose constitution included a guarantee against double jeopardy. It took more than 30 years for the Court to nationalize the constitutional protection against dou- ble jeopardy, when the court overruled Palko and declared that double jeopardy now applied to the states (see Table 4.2).

Self-Incrimination Perhaps the most significant liberty found in the Fifth Amend- ment, and the one most familiar to many Americans who watch television crime shows, is the guarantee that no citiz en “shall be compelled in any criminal case to be a witness against himself.” The most famous case concerning self-incrimination involved 23 -year-old E rnesto M iranda, who was sentenced to betw een 20 and 30 years in prison for the kidnap and rape of an 18 -year-old woman. The woman had identified him in a police lineup, and, after two hours of questioning, Miranda confessed, subsequently signing a statement that his confession had been made vol- untarily, without thr eats or pr omises of immunity . This confession was admitted into evidence and ser ved as the basis for M iranda’s conviction. After his convic - tion, Miranda argued that his confession had not been tr uly voluntary and that he had not been informed of his right to remain silent or his right to consult an attor- ney. The Supreme Cour t agr eed and o verturned the conviction. 63 Following one of the most intensely and widely criticiz ed decisions ev er handed do wn b y the Supreme Court, Miranda’s case pr oduced the r ules the police must follo w before

116 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 116 11/28/18 4:27 PM

questioning an arrested criminal suspect. The reading of a person’s “Miranda rights” became a standard scene in every police station and on virtually every dramatization of police action on television and in the movies. Miranda advanced the civil liberties of accused persons not only by expanding the scope of the Fifth Amendment clause covering coerced confessions and self-incrimination but also by confirming the right to counsel (discussed later). Subsequent Supreme Courts considerably softened the Miranda r estrictions, but the Miranda rule (as set out in Miranda v. Arizona) that persons under arrest must be informed prior to police interr ogation of their rights to remain silent and to have the benefit of legal counsel, still stands as a protection against egregious police abuses of arrested persons.

Eminent Domain The other fundamental clause of the Fifth Amendment is the “takings clause,” which extends to each citiz en a protection against the “taking” of private property by the government “without just compensation.” The power of any government to take private property for public use is called eminent domain. The Fifth Amendment puts limits on that inher ent power through procedures that require a showing of a public purpose and the provision of fair payment for the government’s taking of someone’s property.

THE SIXTH AMENDMENT’S RIGHT TO COUNSEL IS CRUCIAL FOR A FAIR TRIAL

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, b y an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been ascertained by law, and to be informed of the natur e and the cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Like the ex clusionary r ule of the F ourth Amendment and the self -incrimination clause of the F ifth Amendment, the “ right to counsel ” pr ovision of the S ixth Amendment is notable for sometimes freeing defendants who seem to the public to be guilty as charged. O ther provisions of the S ixth Amendment, such as the right to a speedy trial and the right to confront witnesses before an impartial jury, are not very controversial.

Gideon v. Wainwright (1963) is the per fect case study because it inv olved a disreputable person who seemed patently guilty of the crime of which he was convicted. I n and out of jails for most of his 51 y ears, Clar ence Earl G ideon received a five-year sentence for br eaking and entering a poolr oom in P anama City, F lorida. While ser ving time in jail, G ideon became a fairly w ell-qualified “jailhouse lawyer,” made his own appeal on a handwritten petition, and eventu- ally won the landmark ruling on the right to counsel in all felony cases. After the Supreme Court’s decision, Gideon was granted a new trial. This time, represented by an attorney, he was found not guilty.64 The right to counsel was later expanded, beyond just serious crimes, to any trial, with or without a jur y, that holds the possibility of imprisonment.

117R IghTS OF The CR IM INALLY ACCUSeD

wtp12e_ess_ptr_ch04_096-143.indd 117 11/28/18 4:27 PM

THE EIGHTH AMENDMENT BARS CRUEL AND UNUSUAL PUNISHMENT

Excessive bail shall not be r equired, nor ex cessive fines imposed, nor cruel and unusual punishment inflicted.

Virtually all the debate o ver Eighth Amendment issues focuses on the last clause of the amendment: the pr otection from “cruel and unusual punishment. ” One of the gr eatest challenges in interpr eting this pr ovision consistently arises o ver the death penalty. In 1972 the S upreme Court overturned several state death penalty laws, not because they were cruel and unusual but because they were being applied unevenly—that is, blacks w ere much mor e likely than whites to be sentenced to death, the poor more likely than the rich, and men more likely than women.65 Very soon after that decision, a majority of states revised their capital punishment provi- sions to meet the Court’s standards, and the Court reaffirmed that the death penalty could be used if certain standards were met.66 Since 1976 the Court has consistently upheld state laws pr oviding for capital punishment, although it also continues to review death penalty appeals each year.

Between 1976 and April 2017, states executed 1,448 people. Most of those exe- cutions occurred in southern states, with Texas leading the way at 542. As of 2018, 30 states had statutes providing for capital punishment for specified offenses, a pol- icy supported by a majority of Americans, accor ding to polls. O n the other hand, 19 states bar the death penalty; and since the end of the 1990s both the number of death sentences and the number of executions have declined annually.

Many death penalty supporters assert it deters other would -be criminals. Although studies of capital crimes usually fail to demonstrate any direct deterr ent effect, this failure may be due to the lengthy delays (typically y ears and ev en decades) betw een convictions and ex ecutions. A system that eliminates undue delays might enhance deterrence.

Death penalty opponents are quick to coun- ter that the death penalty has not been pr oven to deter crime, either in the United States or abroad. I n fact, America is the only Western nation that still ex ecutes criminals. I f the go v- ernment is to serve as an example of proper behavior, say foes of capital punishment, it has no business sanctioning killing when incar cer- ation also protects society. Furthermore, execu- tion is time -consuming and expensiv e—more expensive than life imprisonment—pr ecisely because the government must make every effort to ensure that it is not ex ecuting an innocent

Opponents argue that the death penalty constitutes cruel and unusual punishment. In recent years, the use of lethal injection drugs including Midazolam has come under scrutiny after troubling executions where the process was drawn out and painful. In 2015 the Supreme Court upheld the use of lethal injection.

118 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 118 11/28/18 4:27 PM

person. C urtailing legal appeals would incr ease the possibility of a mistake. Race also intrudes in death penalty cases: people of color are disproportionately more likely than whites charged with identical crimes to be giv en the ultimate punishment.

In r ecent y ears, the Cour t has issued a number of death penalty opinions, declaring that death was too harsh a penalty for the crime of raping a child 67 and invalidating a death sentence for a black defendant when the prosecutor had improp- erly excluded African Americans fr om the jur y.68 In 2015 the Cour t upheld lethal injection as a mode of execution, despite arguments that this form of execution was likely to cause considerable pain.69

The Right to Privacy Means the Right to Be Left Alone

Although the wor d privacy never appears in the B ill of Rights, ther e is general agr eement that a right to privacy emanates fr om the first 10 amendments—even though judges

and legal scholars continue to disagree about where the right comes from. The idea behind the right to privacy is simple: people have a right to be left alone from government or other persons’ interference in certain personal areas.

The sphere of priv acy was drawn b y the S upreme Cour t in 1965, when it r uled that a Connecticut statute forbidding the use of contraceptiv es vio - lated the right of marital priv acy. Estelle G riswold, the ex ecutive dir ector of the P lanned Parenthood League of Connecticut, was arr ested b y the state of Connecticut for providing information, instr uction, and medical advice about contraception to married couples. S he and her associates w ere found guilty as accessories to the crime and fined $100 each. The Supreme Court reversed the lo wer-court decisions and declar ed the Connecticut law unconstitutional because it violated “ a right of priv acy older than the B ill of Rights—older than our political par ties, older than our school system. ”70 Justice William O. Douglas, author of the majority decision in the Griswold v. Connecticut case, argued that this right of privacy is also grounded in the Constitution because it fits into a “zone of privacy” created by a combination of the Third, Fourth, and Fifth amendments. A concurring opinion, written by Justice Arthur Goldberg, attempted to str engthen D ouglas’s argument b y adding that “ the concept of liberty . . . embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution [and] is suppor ted b y numer ous decisions of this Court . . . and by the language and history of the Ninth Amendment [emphasis added].”71

The right to privacy was confirmed and extended in 1973 in an impor tant but controversial priv acy decision: Roe v. Wade. This decision established a woman’s right to seek an abortion and prohibited states from making abortion a criminal act

Assess whether people have a right to privacy under the Constitution

119The R IghT TO PR IVACY MeANS The R IghT TO Be LeFT ALONe

wtp12e_ess_ptr_ch04_096-143.indd 119 11/28/18 4:27 PM

prior to the point at which the fetus becomes viable, which, in 1973, was the tw enty- seventh w eek.72 I t is impor tant to emphasiz e that the pr eference for priv acy rights and for their extension to include the rights of women to control their own bodies was not something invented by the S upreme Cour t in a v acuum. Most states did not r egulate abor tions in any fashion until the 1840s, at which time only 6 of the 26 existing states had any r egulations gov- erning abor tion. In addition, many states had begun to ease their abor tion r estrictions w ell before the 1973 Roe decision. I n r ecent y ears, a number of states have reinstated some restric- tions on abor tion, including lo wering the via - bility standard to 20 w eeks ( Texas), 12 w eeks (Arkansas), and 6 weeks (North Dakota). While the Supreme Cour t has continued to affirm a

woman’s right to seek an abortion, it has limited the right, approving restrictions as long as they do not pose an “undue burden.”

Like any impor tant principle, once priv acy was established as an aspect of civil liberties protected by the Bill of Rights through the Fourteenth Amendment, it took on a life of its own. In a number of important decisions, the Supreme Court and the lower federal courts sought to protect rights that could not be found in the text of the Constitution but could be discovered through a study of the philosophic sour ces of fundamental rights. Right-to-privacy claims have been made by those attempting to preserve the right to obtain legal abor tions, by those seeking to obtain greater rights for gay people, and b y supporters of physician -assisted suicide (also kno wn as the “right-to-die” movement). In the case of gay people, the S upreme Court extended privacy protections to them in 2003 when it ruled that they are “entitled to respect for their private lives” in the case of Lawrence v. Texas.73 The case overturned a Texas law banning certain sexual acts among same -sex partners. The Court concluded, “Peti- tioners are entitled to r espect for their priv ate lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” For the first time, gay men and lesbians could claim right-to-privacy protection.

Civil Rights Are Protections by the Government

With the adoption of the Fourteenth Amendment in 1868, civil rights became par t of the Constitution, guaranteed to each citiz en thr ough “equal pr otection of the laws. ”

One of the most important cases related to the right to privacy was Roe v. Wade, which established a woman’s right to seek an abortion. However, the decision has remained highly controversial, with opponents arguing that the Constitution does not guarantee this right.

Trace the legal developments and social movements that expanded civil rights

120 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 120 11/28/18 4:27 PM

Together with the Thirteenth Amendment, which abolished slavery, and the Fifteenth Amendment, which guaranteed v oting rights for black men, it seemed to pr ovide a guarantee of civil rights for the ne wly fr eed black slav es. But the general language of the F ourteenth Amendment meant that its support for civil rights could be ev en mor e far -reaching. The very simplicity of the equal protection clause of the F ourteenth Amendment left it open to interpretation:

No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.

These words launched a century of political movements and legal efforts to press for racial equality. The African American quest for civil rights in turn inspired many other groups, including members of other racial and ethnic gr oups, women, the disabled, and gay men, lesbians, and transgender individuals, to seek ne w laws and constitutional guarantees of their civil rights.

PLESSY V. FERGUSON ESTABLISHED “SEPARATE BUT EQUAL”

The Supreme Court was initially no more ready to enforce the civil rights aspects of the Fourteenth Amendment than it was to enfor ce the civil liber ties provisions. Resistance to equality for African Americans in the South led Congress to adopt the Civil Rights A ct of 1875, which attempted to protect blacks from discrimination by proprietors of hotels, theaters, and other public accommodations. But the Court declared the Civil Rights Act of 1875 unconstitutional on the grounds that it sought to protect blacks against discrimination by private businesses, while the Fourteenth Amendment, according to the Court’s interpretation, was intended to protect indi- viduals only from discrimination that arose from actions by public officials of state and local governments.

In the infamous case of Plessy v. Ferguson (1896), the Court went still further by upholding a Louisiana statute that required segregation of the races on trolleys and other public carriers (and, b y implication, in all public facilities, including schools). Homer Plessy, a man defined as “one-eighth black,” sat in a trolley car reserved for whites and was found guilty of violating a Louisiana law that pr o- vided for “equal but separate accommodations” on trains and a $25 fine for any white passenger who sat in a car reserved for blacks or any black passenger who sat in a car r eserved for whites. The Supreme Cour t held that the F ourteenth Amendment’s “equal pr otection of the laws ” was not violated b y laws r equir- ing segregation of the races in public accommodations as long as the facilities were equal, thus establishing the “separate but equal” rule that pr evailed through the mid-twentieth century.74 White people generally pr etended that segr egated accommodations were equal as long as some accommodation for blacks existed. Thus, racial inequality in the guise of the separate but equal doctrine persisted for decades.

121C IV I L R IghTS ARe PROTeCT IONS BY The gOVeRNMeNT

wtp12e_ess_ptr_ch04_096-143.indd 121 11/28/18 4:27 PM

LAWSUITS TO FIGHT FOR EQUALITY CAME AFTER WORLD WAR II

The Supreme Court had begun to change its position on racial discrimination before World War II by being stricter about the criterion for equal facilities in the “separate but equal” rule. In 1938, for example, the Court rejected Missouri’s policy of paying the tuition of qualified blacks to out-of-state law schools rather than admitting them to the University of Missouri Law School.75 Similar rulings in the 1940s and ’50s began to chip away at “separate but equal.”

Although none of those pre-1954 cases confronted “separate but equal” and the principle of racial discrimination head-on, they gave black leaders encouragement to believe that recent legal precedent might change the constitutional framework itself. Much of this legal work was done by the Legal Defense and Educational Fund of the National Association for the Advancement of Colored People (NAACP). Formed in 1909 to fight discrimination against African Americans, the NAACP was the most important civil rights organization during the first half of the twentieth century.

In the fall of 1952 the Court had on its docket cases from Delaware, the District of Columbia, Kansas, South Carolina, and Virginia challenging the constitutional- ity of school segregation. Of these, the case filed in Kansas became the chosen one by the NAACP. It seemed to be ahead of the pack in its district court, and it had the special advantage of being located in a state outside the D eep South, which would minimize local opposition to a favorable decision.76

Oliver Brown, the father of three girls, lived “across the tracks” in a low-income, racially mixed Topeka neighborhood. Every school day morning, Linda Brown took

The 1896 Supreme Court case of Plessy v. Ferguson upheld legal segregation and created the “separate but equal” rule, which fostered national segregation. Overt discrimination in public accommodations was common.

122 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 122 11/28/18 4:28 PM

the school bus to the Monroe School for black children about a mile away but had to walk through a dangerous railroad switchyard to get to the stop—all this, even though a white school was closer to their home. In September 1950, Oliver Brown took Linda to the closer all-white Sumner School to enter her into the third grade in defiance of state law and local segregation rules. When they were refused, Brown took his case to the NAACP; and soon thereafter Brown v. Board of Education was born.

In deciding the Brown case, the Cour t, to the surprise of many , r ejected as inconclusive historical evidence about the intent and the histor y of the Fourteenth Amendment and committed itself instead to considering only the consequences of segregation:

Does segregation of children in public schools solely on the basis of race, even though the phys- ical facilities and other “ tangible” factors may be equal, depriv e the children of the minority group of equal educational opportunities? We believe that it does. . . . We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.77

The Brown decision alter ed the constitutional frame work b y concluding that racial discrimination violated the Constitution.

THE CIVIL RIGHTS STRUGGLE ESCALATED AFTER BROWN V. BOARD OF EDUCATION

Brown v. Board of E ducation withdrew all constitutional authority to use race as a criterion for ex clusion, and it signaled mor e clearly the Cour t’s determination to use the strict scrutiny test in cases related to racial discrimination. This meant that the burden of proof would fall on the government to show that the law in question was constitutional—not on the challengers to sho w the law’s unconstitutionality.78 But the historic decision in Brown v. Board of Education was merely a small open - ing move. First, most states r efused to cooperate until sued, and many ingenious schemes were employed to delay obedience (such as states paying the tuition for white students to attend ne wly created “private” academies). Second, while school boards began to cooperate by eliminating legally enforced school segregation (what is referred to as de jure segregation, meaning literally “b y law” or legally enfor ced practices), extensive actual segregation remained (what is referred to as de facto seg- regation, meaning literally “by fact,” wherein races are still segregated even though the law does not require it). Thus, school segregation in the North as well as in the South remained as a consequence of racially segr egated housing patterns that w ere untouched by the 1954–55 Brown principles. Third, discrimination in employment, public accommodations, juries, voting, and other areas of social and economic activity was not directly touched by Brown.

Social Protest and Congressional Action Ten y ears after Brown, fe wer than 1 percent of black school -age children in the D eep South were attending schools with whites. 79 A decade of fr ustration made it fairly ob vious to all obser vers that

123C IV I L R IghTS ARe PROTeCT IONS BY The gOVeRNMeNT

wtp12e_ess_ptr_ch04_096-143.indd 123 11/28/18 4:28 PM

adjudication alone would not succeed. The goal of “equal protection” required positive, or affirmative, action b y Congress and b y federal agencies. And giv en massive southern r esistance and a generally negative national public opinion toward racial integration, progress would not be made through courts, Congress, or federal agen- cies without intense, w ell-organized suppor t. Organized civil rights demonstrations began to mount slowly but sur ely after Brown v. Board of E ducation. O nly a y ear after B rown, black citizens in Montgomery, Alabama, challenged the city’s segregated bus system with a y earlong boycott. The boycott began with the arr est of Rosa Parks, who refused to give up her bus seat for a white man. A seamstress who worked with civil rights gr oups, P arks ev entually became a civil rights icon, as did one of the ministers leading the bo ycott: M artin L uther King, Jr . After a y ear of priv ate carpools and walking, Montgomery’s bus system desegr egated but only after the S upreme Court ruled the system unconstitutional.

By the 1960s the many organizations that made up the civil rights mo vement had accumulated experience and built networ ks capable of launching massiv e direct-action campaigns against southern segregationists. The Southern Christian Leader ship Confer ence, the S tudent N onviolent C oordinating Committee, and many other organizations had built a mo vement that s tretched across the South, using the media to attract nationwide attention and suppor t. The image of protesters being beaten, attacked b y police dogs, and set upon with fire hoses did much to win broad sympathy for the cause of black civil rights and to discr edit state and local governments in the South. In the massive March on Washington in 1963, the Reverend Martin Luther King, Jr., staked out the mo vement’s moral claims in his famous “I Have a Dream” speech.

Protests against discriminator y practices to ward African Americans did not end in the 1960s. B eginning in 2012, a v ariety of pr otests coalesced under the banner B lack Lives Matter to focus attention on allegations of police miscon - duct directed at African Americans. The movement took off after the shooting of an unarmed black teenager by a white police officer in Ferguson, Missouri, in 2014 and spread across the nation as the media, including social media, carried reports, photos, and videos of police violence against blacks around the country. African Americans have long asserted that they are often victims of racial profil- ing and more likely than whites to be harassed or arrested by the police. Police departments have replied that blacks ar e more likely than whites to be engaged in criminal activity.

“Massive resistance” among white southerners attempted to block the desegregation efforts of the national government. For example, at Little Rock Central High School in 1957, an angry mob of white southerners prevented black students from entering the school.

124 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 124 11/28/18 4:28 PM

THE CIVIL RIGHTS ACTS MADE EQUAL PROTECTION A REALITY

The right to equal protection of the laws could be established and, to a certain extent, implemented by the courts. But after a decade of very frustrating efforts, the courts and Congress ultimately came to the conclusion that the federal courts alone were not adequate to the task of changing the social r ules and that legislation and administrative action would be needed.

Congress used its legislative powers to help make equal pr otection of the laws a reality by passing the Civil Rights Act of 1964, prohibiting major forms of discrimi- nation against racial, ethnic, national and religious minorities, and women in voting registration, schools, public accommodations, and the wor kplace. The act seemed bold at the time, but it was enacted 10 y ears after the Supreme Court had declared racial discrimination “inherently unequal” and long after blacks had demonstrated that discrimination was no longer acceptable.

Public Accommodations After the passage of the 1964 Civil Rights A ct, public accommodations quickly removed some of the most visible forms of racial discrim - ination. S igns defining “colored” and “ white” r estrooms, water fountains, waiting rooms, and seating arrangements were removed and a host of other practices that relegated black people to separate and inferior arrangements w ere ended. I n addition, the federal government filed more than 400 antidiscrimination suits in federal cour ts against hotels, restaurants, taverns, gas stations, and other “public accommodations.”

Many aspects of legalized racial segregation, such as using separate Bibles to swear in black and white witnesses in the courtroom, seem like ancient history today. But the issue of racial discrimination in public settings is b y no means o ver. In 1993 six African American S ecret Service agents filed suit after a Denny’s restaurant in Annapolis, Maryland, failed to ser ve them. S imilar charges citing discriminator y service at Denny’s restaurants surfaced across the country. Faced with evidence of a pattern of systematic discrimination and numerous lawsuits, Denny’s paid $45 mil- lion in damages to plaintiffs in Maryland and California in what is said to be the largest settlement ever in a public accommodation case.80 In addition to the settle- ment, the chain vowed to expand employment and management opportunities for minorities in Denny’s restaurants.

School Desegregation The 1964 Civil Rights Act also declar ed discrimination by private employers and state governments (school boards, etc.) illegal, then went further by providing for administrative agencies to help the courts implement these laws. The act, for example, authorized the ex ecutive branch, thr ough the J ustice Department, to implement federal cour t orders to desegr egate schools and to do so without having to wait for individual par ents to bring complaints. The act also provided that federal grants-in-aid to state and local go vernments for education be withheld from any school system practicing racial segregation.

In recent years, a series of court rulings have slowed race-based integration efforts. In 2007 the S upreme Cour t’s r uling in Parents Involved in Community Schools v .

125C IV I L R IghTS ARe PROTeCT IONS BY The gOVeRNMeNT

wtp12e_ess_ptr_ch04_096-143.indd 125 11/28/18 4:28 PM

Seattle School District No. 1 limited the measures that can be used to promote school integration.81 The case involved school assignment plans voluntarily initiated by the cities of Seattle, Washington, and Louisville, Kentucky. By making race one factor in assigning students to schools, the cities hoped to achieve greater racial balance across the public schools. The Court ruled that these plans, even though they were volun- tarily adopted by cities, were unconstitutional because it assigned some students to schools based on race (in violation of Brown). Still, some described the decision as the end of the Brown era because it eliminated one of the fe w public strategies left to promote racial integration.82

Outlawing Discrimination in Employment The federal courts and the Jus- tice Department also fought employment discrimination through the Civil Rights Act of 1964, which outlawed job discrimination by all private and public emplo yers, including go vernmental agencies (such as fire and police departments) that employed more than 15 workers.83 The 1964 act makes it unlaw- ful to discriminate in emplo yment on the basis of color , religion, sex, or national origin, as well as race.

In order to enfor ce fair emplo yment practices, the national go vernment could revoke public contracts for goods and services and refuse to engage in contracts with any private company that could not guarantee that its r ules for hiring, pr omotion, and firing were nondiscriminatory.

But one pr oblem was that the complaining par ty had to sho w that deliber - ate discrimination was the cause of the failure to get a job or a training oppor- tunity. Rar ely, of course, does an emplo yer explicitly admit discrimination on the basis of race, sex, or any other illegal r eason. R ecognizing this, the cour ts have allo wed aggriev ed par ties (the plaintiffs) to make their case if they can show that an emplo yer’s hiring practices had the effect of ex clusion, ev en if they cannot show the intention to discriminate.

Voting Rights Although 1964 was the most impor tant y ear for civil rights l eg- islation, it was not the only impor tant y ear. I n 1965, Congr ess significantly strengthened legislation protecting voting rights by barring literacy and other tests as a condition for v oting in six southern states, 84 by making it a crime to inter fere with voting, and by providing for the replacement of local registrars with federally appointed registrars in counties designated b y the attorney general as significantly resistant to registering eligible blacks to vote. The right to vote was further strength- ened with ratification in 1964 of the Twenty-Fourth Amendment, which abolished the poll tax, and later with legislation permanently outlawing literacy tests and mandating bilingual ballots or oral assistance for S panish, Chinese, J apanese, and Korean speakers, and N ative Americans. This 1965 law finally led to a dramatic increase in voting by African Americans, meaning that it took almost 100 y ears to carry out the Fifteenth Amendment.

In the long r un, the laws extending and pr otecting v oting rights could prove to be the most effective of all the gr eat civil rights legislation because the progress in black political par ticipation produced by these acts has alter ed the

126 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 126 11/28/18 4:28 PM

shape of American politics. In 1965, in the seven states of the Old Confederacy covered by the Voting Rights A ct, 29.3 per cent of the eligible black r esidents were r egistered to v ote, compar ed with 73.4 per cent of the white r esidents (see Table 4.3). I n 1967, a mer e two y ears after implementation of the v oting rights laws, 52.1 percent of the eligible blacks in the seven states were registered. By 1972 the gap betw een black and white r egistration in the sev en states was only 11.2 points.

A new area of controversy in the realm of voting rights concerns so-called voter ID laws. Some 34 states hav e enacted legislation r equiring voters to show positive identification at the polls. As of 2018, seven of these states required photo ID, like a driver’s license, in order to vote. Republicans generally support such laws, arguing that they deter voter fraud. Democrats generally oppose such laws, countering that

TABLE 4.3

Registration by Race and State in Southern States Covered by the Voting Rights Act (VRA)

The VRA had a direct impact on the rate of black voter registration in the southern states, as measured by the gap between white and black voters in each state. Further insights can be gained by examining changes in white registration rates before and after passage of the VRA and by comparing the gaps between white and black registration. Why do you think registration rates for whites increased significantly in some states and dropped in others? What impact could the increase in black registration have had on public policy?

BEFORE THE ACT* AFTER THE ACT* 1971–72

WHITE (%)

BLACK (%)

GAP** (%)

WHITE (%)

BLACK (%)

GAP (%)

Alabama 69.2 19.3 49.9 80.7 57.1 23.6

georgia 62.6 27.4 35.2 70.6 67.8 2.8

Louisiana 80.5 31.6 48.9 80.0 59.1 20.9

Mississippi 69.9 6.7 63.2 71.6 62.2 9.4

North Carolina 96.8 46.8 50.0 62.2 46.3 15.9

South Carolina 75.7 37.3 38.4 51.2 48.0 3.2

Virginia 61.1 38.3 22.8 61.2 54.0 7.2

AVeRAge 73.4 29.3 44.1 67.8 56.6 11.2

*Available registration data as of March 1965 and 1971–72. **The gap is the percentage-point difference between white and black registration rates.

SOURCE: U.S. Commission on Civil Rights, Political Participation (1968), Appendix VII: Voter Education Project, attachment to press release, October 3, 1972.

127C IV I L R IghTS ARe PROTeCT IONS BY The gOVeRNMeNT

wtp12e_ess_ptr_ch04_096-143.indd 127 11/28/18 4:28 PM

they are par ticularly burdensome to poor, young, and minority voters, who they say are less likely to possess such IDs. Critics also note that virtually no documented cases of voter ID fraud exist, despite intensive efforts to uncover them. In 2017 the Trump administration established an election integrity commission to look into charges of illegal v oting in the 2016 elections. The Commission was blasted by Democrats as another effort to discourage voting.

Housing The Civil Rights Act of 1964 did not address housing, but in 1968, Con- gress passed another civil rights act specifically to outlaw housing discrimination. Called the Fair Housing Act, the law prohibited discrimination in the sale or rental of most housing, eventually covering nearly all of the nation’s housing. Housing was among the most controversial of discrimination issues because of deeply entrenched patterns of residential segregation across the United States.

Although it pr onounced sw eeping goals, the F air H ousing A ct had little effect on housing segregation because its enfor cement mechanisms w ere so weak. I ndividuals believing they had been discriminated against had to file suit themselv es. The burden was on the individual to pr ove that housing discrimination had occurr ed, ev en though such discrimination is often subtle and difficult to document. Although local fair-housing groups emerged to assist individuals in their cour t claims, the pr ocedures for pr oving discrimination created a formidable barrier to effective change. These procedures w ere not altered until 1988, when Congr ess passed the F air Housing Amendments A ct. This new law put mor e teeth in the enfor cement pr ocedures and allo wed the Department of Housing and Urban Development to initiate legal action in cases of discrimination.85

Another kind of discrimination, r elated to discriminator y home mor tgage– lending practices, remained significant. So-called predatory lending—offering loans with interest rates that are higher than prevailing market rates, including “subprime mortgages”—led to charges that such loans w ere offered to African Americans and Latinos, while whites with similar incomes w ere offered loans with lo wer interest rates. These charges received extensive national attention when the economic down- turn of 2008–09 led to widespr ead mor tgage defaults, with many people losing their homes. 86 Lawsuits o ver these practices hav e resulted in the largest financial settlements ever issued for lending discrimination.

AFFIRMATIVE ACTION ATTEMPTS TO RIGHT PAST WRONGS

Over the past half -century, the relatively narrow goal of equalizing oppor tunity by eliminating discriminatory barriers developed toward the far broader goal of affirma- tive action, government policies or programs that seek to redress past injustices against specified groups by making special efforts to provide members of these groups with access to educational and emplo yment opportunities. An affirmative action policy uses two novel approaches: (1) positive or benign discrimination in which race or some other status is counted as a positiv e rather than negativ e factor and (2) compensator y

128 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 128 11/28/18 4:28 PM

action to favor members of the disadvantaged group who themselves may never have been the victims of discrimination.

Affirmative action also took the form of efforts by the agencies in the D epart- ment of Health, Education, and Welfare to shift their focus fr om “desegregation” to “integration.”87 Federal agencies r equired school districts to pr esent plans for busing children across district lines, for closing certain schools, and for redistribut- ing faculties as well as students or face the loss of aid from the federal government. The guidelines constituted preferential treatment to compensate for past discrimi- nation, leading to a dramatic incr ease in the numbers of black childr en attending integrated classes.

The Supreme Court Shifts the Burden of Proof in Affirmative Action Efforts by the government to shape the meaning of affirmative action today tend to center on one key issue: What is the appropriate level of review in affirmative action cases— that is, on whom should the bur den of proof be placed: the plaintiff, to show that discrimination has not occurr ed, or the defendant, to sho w that discrimination has occurred? The reason this question is difficult is because the cases in which the Court struck down racially discriminatory laws all involved historically disadvantaged racial minority groups. The Court struck down those laws partly because it concluded they were motivated by racial hostility and par tly because the Cour t concluded that dis - advantaged minority gr oups were effectively unable to use the political pr ocess to challenge laws that harmed them. The new cases, however, rather than being moti - vated by racial hostility, were enacted with the objectiv e of assisting victims of past injustice. And instead of harming minority groups, they disadvantaged members of the dominant majority racial group. Yet critics argued that discriminating against any individual because of their race violated the Equal Protection clause.

This question was addressed by the Supreme Court in the case of Regents of the University of C alifornia v. Bakke. Allan B akke, a white male, br ought suit against the University of California at Davis Medical School in 1973 on the grounds that it denied him admission on the basis of his race. (That year the school had reserved 16 of its 100 available slots for minority applicants.) Bakke argued that his grades and test scores had ranked him well above many students who had been accepted at the school and that the only possible explanation for his rejection was that he was white, whereas those others accepted w ere black or Latino . In 1978, B akke won his case before the Supreme Court and was admitted to the medical school, but he did not succeed in getting affirmative action declared unconstitutional. The Court accepted the argument that achieving “a diverse student body” was “a compelling public pur- pose,” but it ruled that the method of a rigid quota of student slots assigned on the basis of race was incompatible with the Fourteenth Amendment’s equal protection clause. Thus, the Court permitted universities and other hiring authorities to con - tinue to take minority status into consideration but barred the use of quotas.88

This ambiguous status of affirmative action was ho w things stood in 2003, when the Supreme Court took two cases against the University of Michigan. In Grutter v. Bollinger, the Cour t upheld the affirmative action pr ogram used b y Michigan’s law school, finding it in keeping with the standard set in the Bakke case. 89 Michigan’s

129C IV I L R IghTS ARe PROTeCT IONS BY The gOVeRNMeNT

wtp12e_ess_ptr_ch04_096-143.indd 129 11/28/18 4:28 PM

undergraduate affirmative action program was declared unconstitutional, however, in Gratz v. Bollinger because its ranking system for admissions gave specific points to African American, Latino, and N ative American applicants. 90 This approach was barred for r esembling too closely the specific numerical quota system struck down by Bakke. In 2013 the Court indicated in Fisher v. University of Texas that a school’s affirma- tive action program of admissions that seems to discriminate in favor of black students must be subjected to the same “strict scrutiny” as a program that seems to discriminate against black students and sent the case back to the lo wer courts for consideration.91 The Court heard the case again in 2016, and declar ed that some intr usion on equal protection was warranted by the importance of creating a diverse student body.92

The Civil Rights Struggle Was Extended to Other Disadvantaged Groups

Even befor e equal emplo yment laws began to have a positive effect on the economic situation of blacks, some - thing far more dramatic began to happen: the univ ersalization of civil

rights. The right not to be discriminated against was being successfully claimed by the other groups listed in the 1964 Civil Rights Act (those defined by sex, religion, or national origin) and ev entually by still other gr oups (defined by age or sexual orientation). This extension of civil rights became the new frontier of the civil rights struggle, and women emerged with the greatest prominence in this new struggle.

AMERICANS HAVE FOUGHT GENDER DISCRIMINATION

In many ways the Civil Rights A ct fostered the growth of the women’s movement (although critics noted that this mo vement largely benefited white women). The first major campaign of the National Organization for Women (NOW) involved picketing the E qual Employment Opportunity Commission for its r efusal to ban sex-segregated employment advertisements. NOW also sued the New York Times for continuing to publish such ads after the passage of the act. Another organiza - tion, the Women’s Equity Action League, pursued legal action on a wide range of sex-discrimination issues, filing lawsuits against law schools and medical schools for discriminatory admission policies, for example.

Building on these victories and the gr owth of the women’s movement, feminist activists sought to add an “Equal Rights Amendment” (ERA) to the Constitution. The proposed amendment was short; it stated that “equality of rights under the law shall not be denied or abridged b y the U nited States or b y any S tate on account of sex.” The amendment’s suppor ters believed that such a sw eeping guarantee of equal rights was a necessar y tool for ending all discrimination against women and for making gender r oles more equal. Opponents charged that it would be socially disruptive and would intr oduce changes (such as unisex r estrooms) that most

Describe how different groups have fought for and won protection of their civil rights

130 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 130 11/28/18 4:28 PM

Americans did not want. The amendment easily passed Congress in 1972 and won quick approval in many state legislatures, but it fell 3 states shor t of the 38 needed to ratify it by the 1982 deadline.93

Despite the failure of the ERA, efforts to stop gender discrimination expanded dramatically as an area of civil rights law. In the 1970s the conservative Burger Court (under Chief J ustice Warren Burger) helped establish gender discrimination as a major and highly visible civil rights issue. Although the S upreme Court refused to treat gender discrimination as the equivalent of racial discrimination,94 it did make it easier for plaintiffs to file and win suits on the basis of gender discrimination.

Courts began to find sexual harassment a form of sex discrimination during the late 1970s. M ost of the law on sexual harassment has been dev eloped by cour ts through interpretation of Title VII of the Civil Rights A ct of 1964. I n 1986 the Supreme Court recognized two forms of sexual harassment: the quid pro quo type, which involves an explicit or strongly implied threat that submission is a condition of continued employment, and the hostile environment type, which involves offen- sive or intimidating employment conditions amounting to sexual intimidation.95

Another major step was taken in 1992, when the Cour t decided in Franklin v. Gwinnett County P ublic Schools that violations of Title IX of the 1972 E duca- tion Act could be remedied with monetary damages.96 Title IX forbade gender dis- crimination in education, but it initially sparked little litigation because of its weak enforcement provisions. The Court’s 1992 ruling that monetary damages could be awarded for gender discrimination opened the door for more legal action in the area of education. The greatest impact has been in the ar eas of sexual harassment (the subject of the Franklin case) and in equal tr eatment of women’s athletic programs. The potential for monetary damages has made univ ersities and public schools take the problem of sexual harassment more seriously.

In 1996 the S upreme Cour t made another impor tant decision b y putting an end to all -male schools suppor ted by public funds. I t ruled that the policy of the Virginia Military Institute (VMI) not to admit women was unconstitutional.97 Along with The Citadel, an all-male military college in South Carolina, VMI had never admitted women in its 157 -year history. VMI argued that the unique educational experience it offered—including intense physical training and the harsh treatment of freshmen—would be destroyed if women were admitted. The Court, however, ruled that the male-only policy denied “substantial equality” to women. Two days after the Court’s ruling, The Citadel announced that it would accept women.

Women have also pr essed for civil rights in emplo yment. In particular, women have fought against pay discrimination, which o ccurs when a male employee is paid more than a female emplo yee of equal qualifications in the same job. In the 1960s pay discrimination was common. After the Equal Pay Act of 1963 made such discrimination illegal, women ’s pay slo wly moved toward the lev el of men ’s pay. In 2007 this movement received a setback when the Supreme Court ruled against a claim of pay discrimination. The case, Ledbetter v. Goodyear Tire and Rubber Co., involved a female super visor named Lily Ledbetter , who learned late in her car eer that she was being paid up to 40 percent less than male supervisors, including those with less seniority. Ledbetter filed a grievance with the EEOC, charging sex discrimination. 98

131The C IV I L R IghTS STRUggLe

wtp12e_ess_ptr_ch04_096-143.indd 131 11/28/18 4:28 PM

The Supreme Court denied her claim, ruling that, according to the law, workers must file their grievance 180 days after the discrimina - tion occurs. Many observers found the ruling unfair because wor kers often do not kno w about pay differentials until well after the ini- tial decision to discriminate has been made. In 2009 the Lily Ledbetter Fair Pay Act became the first bill that President Obama signed into law, giving workers expanded rights to sue in cases such as Ledbetter ’s when an emplo yee learns of discriminatory treatment well after it has started.

In r ecent y ears, laws and court deci - sions designed to deal with discrimination against women hav e been used b y gr oups representing transgender individuals to press

for equal rights, especially in the r ealm of emplo yment. For example, Title VII of the 1964 Civil Rights A ct makes it unlawful to discriminate in emplo yment on the basis of color , religion, sex, national origin, or race. P ressed by groups repre- senting transgender wor kers, in 2015 P resident Obama issued an ex ecutive order prohibiting federal contractors fr om discriminating against workers based on their sexual orientation or gender identity . Two months later the EEOC filed its first-ever lawsuits to pr otect transgender wor kers under Title VII. Later that y ear Attorney General E ric H older announced that the J ustice Department would consider discrimination against transgender people as co vered by the Civil Rights Act’s pr ohibition of sex discrimination. 99 Nonetheless, attempts hav e been made to pass legislation r equiring transgender individuals to use public bathr ooms that correspond to the gender designated on their bir th cer tificates. In 2016, N orth Carolina enacted such a law . After the federal D epartment of J ustice warned the state that the law violated the Civil Rights A ct, the state and the depar tment filed opposing lawsuits over the issue. As the legal standoff continued, many companies pulled conventions and other events out of the state, costing North Carolina’s econ- omy millions of dollars. Bowing to pressure, North Carolina repealed the ordinance in 2017. Also in 2017, President Trump tweeted that transgender people would be barred from military service. The president’s tweet caused confusion and consterna- tion with Pentagon officials, saying they had neither been consulted nor received any formal directive. On the heels of a court decision pausing the enactment of any ban, the military said that transgender enlistments would be allowed in 2018.100

LATINOS AND ASIAN AMERICANS FIGHT FOR RIGHTS

Although the Civil Rights A ct of 1964 outlaw ed discrimination on the basis of national origin, persistent discrimination plus limited E nglish pr oficiency kept many Asian Americans and Latinos fr om full par ticipation in American life. Two

Political equality did not end discrimination against women in the workplace or in society at large. In 2009, President Obama signed the Lilly Ledbetter Fair Pay Act in an effort to reinstate fair pay protections for women.

CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS132

wtp12e_ess_ptr_ch04_096-143.indd 132 11/28/18 4:28 PM

developments in the 1970s, ho wever, established rights for language minorities. I n 1974 the Supreme Court ruled in Lau v. Nichols that school districts have to provide education for students whose English is limited.101 It did not mandate bilingual education, but it established a duty to pr ovide instruction that the students could understand. And as mentioned earlier the 1970 amendments to the Voting Rights Act permanently outlaw ed literacy tests in all 50 states and mandated bilingual ballots or oral assistance for those who speak Spanish, Chinese, Japanese, Korean, or Native American languages.

Asian Americans and Latinos hav e also been concerned about the impact of immigration laws on their civil rights. M any Asian American and Latino organiza - tions opposed the Immigration Reform and Control Act of 1986 because it imposed sanctions on emplo yers who hir e undocumented wor kers. S uch sanctions, they feared, would lead employers to discriminate against Latinos and Asian Americans. These suspicions were confirmed in a 1990 report by the General Accounting Office that found employer sanctions had created a “widespread pattern of discrimination” against Latinos and others who appear foreign.102

As we saw in Chapter 3, a number of states have recently passed very strict immi- gration laws. Arizona’s 2010 law provided the inspiration for these far-reaching state measures. Arizona’s law required immigrants to carr y identity documents with them at all times, made it a crime for an undocumented immigrant to apply for a job , gave

Immigration is one of today’s most controversial issues. President Trump campaigned on a promise to build a protective wall on the U.S.-Mexico border. Supporters of stricter immigration policies believe they will help protect jobs for American citizens. Others support the rights of undocumented people— especially young people brought to the United States by their parents, so-called Dreamers—and believe that they should have a path to American citizenship.

133The C IV I L R IghTS STRUggLe

wtp12e_ess_ptr_ch04_096-143.indd 133 11/28/18 4:28 PM

the police greater powers to stop any one they suspected of being an unauthoriz ed immigrant, and r equired the police to check the immigration status of a person they detain if they suspect that person is an unauthoriz ed immigrant. The Justice Department challenged the law on the grounds that the federal government was responsible for making immigration law , not the states. I n 2012 the Cour t struck down three parts of the Ariz ona law: the pr ovision that immigrants carr y identity papers, that undocumented immigrants cannot apply for jobs, and that police can stop persons they suspect of being undocumented immigrants. But the Court let stand the provision that required local police to check the immigration status of an individual detained for other reasons, if they had grounds to suspect that the person was in the country illegally.103

In 2014, P resident O bama issued ex ecutive or ders granting quasi -legal status and work permits to millions of individuals who entered the United States illegally as children or who hav e children who ar e American citizens. The Supreme Court challenged Obama’s authority to issue the ex ecutive order, and in 2016, with only eight members on the Court after the death of Justice Scalia, the Court issued a 4–4 tie.104 The stalemate let stand a lower-court decision striking down Obama’s order. The lower-court decision, however, did not establish a binding national precedent, and the administration seemed likely to ignore it.

NATIVE AMERICANS HAVE SOVEREIGNTY BUT STILL LACK RIGHTS

Native Americans occupy a unique place in the American equality landscape. An early Supreme Court decision referred to nativ e peoples as “domestic dependent nations”—they were not consider ed American citiz ens, but they w ere also placed firmly under the power of the national go vernment. Native peoples w ere forcibly removed from lands, attacked in sustained military campaigns, and subject to exten- sive and explicit discrimination across the country.

In 1924 native peoples were collectively naturalized by Congress. In 1975 they were granted federal v oting-rights pr otections in the amendments to the Voting Rights Act. The Lau decision established the right of Native Americans to be taught in their own languages. This marked quite a change from the period when Native American children attended boarding schools run by the Bureau of Indian Affairs, where they were forbidden from speaking their own languages and otherwise forced to assimilate to the dominant culture. Native Americans have also sought to expand their rights on the basis of their so vereign status. Since the 1920s and ’30s, N ative American tribes have sued the federal government for illegally seizing land, seeking monetary reparations and land. Both types of damages hav e been awarded in such suits but only in small amounts. Native American tribes have been more successful in winning federal r ecognition of their so vereignty. Most significant economically was a 1987 S upreme Court decision that fr eed Native American tribes fr om most state regulations prohibiting gambling. The establishment of casino gambling on Native American lands has br ought a substantial flow of ne w income into some desperately poor reservations.

134 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 134 11/28/18 4:28 PM

elections are only a small part of what makes a democracy a democracy. Liberal democracies also have extensive civil rights and civil liberties.

Freedom house, an independent watch- dog organization focusing on freedom and democracy around the world, collects data on political rights and civil liberties from each country. They measure freedom of expression and belief, respect for the “rule of law,”a the right to organize and form associations, and personal autonomy and individual rights to rank countries as free, partly free, and not free (shown below).

All countries vary in how they prioritize specific liberties. The United States is generally comparable to other democracies when it comes to the freedom of expression and belief and the right to organize and form associations, but the United States places exceptionally high emphasis on personal autonomy and individual rights. In comparison, Latvia is ranked slightly higher on the right to organize and form associations, but concerns regarding the treatment of women and minorities mean its individual rights score is lower.

Civil Liberties around the World

SOURCE: Freedom House, “Freedom in the World 2018 Democracy in Crisis,” https://freedomhouse.org/report/ freedom-world-aggregate-and-subcategory-scores (accessed 4/27/18).

Free (democracy)

Partly free Not free No data available

CIVIL LIBERTIES AND POLITICAL RIGHTS, 2018

a A legal principle that laws should govern a country—including its leaders—rather than having decisions made arbitrarily by individuals in the government.

wtp12e_ess_ptr_ch04_096-143.indd 135 11/28/18 4:28 PM

DISABLED AMERICANS WON A GREAT VICTORY IN 1990

The concept of rights for the disabled began to emerge in the 1970s as the civil rights model spread to other groups. The seed was planted in a little-noticed provision of the 1973 Rehabilitation Act, which outlawed discrimination against individuals on the basis of disabilities. As in many other cases, the law itself helped give rise to the movement demanding rights for the disabled.105 Modeling it on the NAACP’s Legal Defense Fund, the disability mo vement founded the D isability Rights E ducation and D efense F und to pr ess its legal claims. The movement achiev ed its gr eatest success with the passage of the Americans with D isabilities A ct of 1990, which guarantees equal employment rights and access to public businesses for the disabled and bars discrimination in emplo yment, housing, and health car e. The EEOC is a body that considers claims of discrimination in violation of this act. The impact of the law has been far-reaching as businesses and public facilities have installed ramps, elevators, and other devices to meet the act’s requirements.106

LGBTQ AMERICANS

In less than 50 y ears, the lesbian, gay , bisexual, transgender , and queer (L GBTQ) movement has become one of the largest civil rights movements in contemporary America. For much of the country’s history, any sexual orientation other than hetero- sexuality was considered “deviant,” and many states criminaliz ed sexual acts consid- ered to be “unnatural.” Gay people were often afraid to reveal their sexual orientation for fear of r eprisals, including being fired from their jobs; and the police in many cities raided bars and other establishments where it was believed that gay people gath- ered. While no formal restrictions existed on their political participation, gay people faced the possibility of ostracism, discrimination, assault, and even prosecution.107

The contemporary gay rights movement began in earnest in the 1960s, gr owing into a well-financed and sophisticated lobby, though there was no Supreme Court ruling or national legislation explicitly protecting gays and lesbians from discrimina- tion until 1996. The first gay rights case that the Court decided, Bowers v. Hardwick (1986), ruled against a right to privacy that would protect consensual homosexual activity.108 After the Bowers decision, the gay and lesbian rights mo vement sought suitable legal cases to test the constitutionality of discrimination against gay men and lesbians, much as the black civil rights movement did in the late 1940s and ’50s. In 1996 the S upreme Cour t, in Romer v. Evans, explicitly extended fundamental civil rights pr otections to gays and lesbians b y declaring unconstitutional a 1992 amendment to the Colorado state constitution that pr ohibited local go vernments from passing ordinances to protect gay rights.109

The gay community won another major victory in the 2003 case of Lawrence v. Texas (mentioned earlier), in which the Supreme Court overturned Bowers and struck down a Texas law that made certain sexual conduct between consenting partners of the same sex illegal. While the ruling in Lawrence struck down laws that made homo- sexual acts a crime, it did not change federal and state laws that deprived gay people of full civil rights, including the right to marr y. In 2013 the Supreme Court struck down a federal law (the D efense of M arriage Act) that barred benefits to married

136 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 136 11/28/18 4:28 PM

same-sex couples and let stand a California law r ecognizing same -sex marriage. The federal government subsequently expanded recognition of same -sex marriages for the purpose of federal benefits and legal pro- ceedings, such as sur vivor benefits, bank- ruptcies, tax purposes, and immigration.

In 2015 the S upreme Cour t clarified the law concerning same -sex marriage. In the landmar k case of Obergefell v . Hodges, the Court ruled that the Constitu- tion’s equal protection clause and the Four- teenth Amendment ’s due pr ocess clause guarantee same -sex couples the right to marry in all states and r equired states to recognize same -sex marriages per formed in other jurisdictions. 110 Though the Court was divided in the case, its decision actually reflected a dramatic shift in public opinion in favor of same-sex unions and their right to wed.

Another significant victory at the national lev el occurr ed in 2009, when ne w legislation extended the definition of hate crimes to include crimes against gays and transgender people. S uch legislation had been sought since the 1998 mur der of Matthew Shepard, a Wyoming college student who was br utally slain because of his sexual orientation. The 2009 law allows for tougher penalties when a crime is desi gnated a hate crime. I n another impor tant victory for the gay rights mo ve- ment, an ex ecutive order signed b y President Obama in 2011 r epealed the U.S. military’s “Don’t Ask, Don’t Tell” policy, a 20 -year-old rule that expelled gays and lesbians from the military if they made their sexual orientation known. The new policy allows gays to serve openly in the military.

Civil Liberties and Civil Rights WHAT DO WE WANT? The prominent place of civil liberties is one of the hallmarks of American government.

The freedoms enshrined in the Constitution and its amendments help define the

relationship between government and citizens by limiting what government can do to

individuals.

But these freedoms also come with trade-offs. As we saw in the chapter opener,

the freedom to reimagine an ethnic slur as a term of empowerment was afforded to

the Slants rock band. In a further twist, this decision undermined Native Americans’

In 2013 the Supreme Court struck down the portion of the Defense of Marriage Act denying federal benefits to married same- sex couples. This decision paved the way for the Court decision two years later legalizing same-sex marriage nationwide. The Obama administration showed its support by illumi- nating the White House in rainbow light.

137C IV I L L IBeRT IeS AND C IV I L R IghTS : WhAT DO We WANT?

wtp12e_ess_ptr_ch04_096-143.indd 137 11/28/18 4:28 PM

efforts to revoke the Washington Redskins’ team name, as they found it to be an

offensive ethnic term, and the groups were unable to establish a legal basis to sue

the team. The Slants’ free speech was protected to their joy, but so was the Redskins’

free speech to the disappointment of Native Americans. Issues related to free speech,

privacy, and religious freedom (see the “Who Participates?” feature on the facing

page) are unlikely to go away anytime soon.

The civil rights revolution, a revolution that began with African Americans, has

broadened to include women and Latinos and to address such matters as sexual

orientation, sexual identification, and immigration status. As our nation becomes more

and more diverse, equal protection of the laws will become more and more important.

If we are to succeed and prosper as a nation, we must be inclusive. The tumultuous

history of civil rights in America demonstrates that exclusion is a recipe for national

calamity, and that struggles for civil rights often take a long time, beginning with polit-

ical action by a small group of committed individuals and often ending with legislation

and legal decisions from the highest court in the country. What civil rights battles now

appear on the country’s horizon? What can and should be done to remedy past wrongs

that have current consequences, such as when past discrimination results in an eco-

nomic underclass for a racial or ethnic minority? And, most fundamentally, how does a

country based on the democratic principle of majority rule ensure that the civil rights

of minorities are protected?

138 CHAPTER 4 C I V I L L IBeRT IeS AND C IV I L R IghTS

wtp12e_ess_ptr_ch04_096-143.indd 138 11/28/18 4:28 PM

WHO PARTICIPATES?

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO SOURCE: Robert P. Jones and Daniel Cox, America's Changing Religious Identity, 2016, www.prri.org/ (accessed 11/4/17).

Percentage of American Adults in Each Religious Tradition

Under the First Amendment, Americans enjoy the freedom to practice (or not practice) the religion of their choice. Most Americans identify with and participate in some form of religion.

Protestant 44%

Other Christian 3%

Catholic 20%

Jewish 2%

Buddhist 1%

Muslim 1%

Hindu 1%

Other faiths 1%

Nothing in particular 17%

Atheist 3%

Agnostic 3%

Don't know 4%

Religious Affiliation and Freedom of Religion

wtp12e_ess_ptr_ch04_096-143.indd 139 11/28/18 4:28 PM

Practice Quiz

1. Which of the following rights was not included in the original Constitution? (p. 100) a) prohibition of bills of attainder b) prohibition of ex post facto laws c) guarantee of habeas corpus d) guarantee of trial by jury in state

where crime was committed e) prohibition of warrantless search

and seizure

2. When did civil rights first become part of the Constitution? (p. 101) a) in 1789 at the Founding b) with the adoption of the Fourteenth

Amendment in 1868 c) when Barack Obama was elected

president d) with the adoption of the Nineteenth

Amendment in 1920 e) in the 1954 Brown v. Board of

Education case

3. The process by which some of the liberties in the Bill of Rights were applied to the states is known as (p. 102) a) selective incorporation. b) judicial activism. c) civil liberties. d) establishment. e) preemption.

4. The judicial doctrine that places a heavy burden of proof on the govern- ment when it seeks to regulate or restrict speech is called (pp. 105–6) a) judicial restraint. b) judicial activism. c) habeas corpus. d) prior restraint. e) strict scrutiny.

Know Your First Amendment Rights

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

Share your opinion about the First Amendment and religion on campus with your school newspaper. Find information about students’ religious rights at www.the�re.org.

Learn more about your other First Amendment rights, such as free speech on the internet, at www.eff.org.

Learn more about freedom of religion from a variety of legal scholars at www.constitutioncenter.org.

140 STUDY gU IDe

wtp12e_ess_ptr_ch04_096-143.indd 140 11/28/18 4:28 PM

5. Which of the following describes a written statement made in “reckless disregard of the truth” that is consid- ered damaging to a victim because it is “malicious, scandalous, and defamatory”? (p. 109) a) slander b) libel c) speech plus d) fighting words e) expressive speech

6. In District of Columbia v. Heller, the Supreme Court ruled that (p. 112) a) states can require citizens to own

firearms. b) federal grants can be used to sup-

port the formation of state militias. c) felons can be prevented from

purchasing assault rifles. d) the Second Amendment applies

to states as well as the federal government.

e) the Second Amendment applies only to the federal government and not to states.

7. The Fourth, Fifth, Sixth, and eighth amendments, taken together are the essence of (p. 113) a) due process of law. b) free speech. c) the right to bear arms. d) civil rights of minorities. e) freedom of religion.

8. In Mapp v. Ohio, the Supreme Court ruled that (p. 114) a) evidence obtained from an illegal

search could not be introduced in a trial.

b) the government must provide legal counsel for defendants who are too poor to provide for themselves.

c) persons under arrest must be informed prior to police interroga- tion of their rights to remain silent and to have the benefits of legal counsel.

d) the government has the right to take private property for public use if just compensation is provided.

e) a person cannot be tried twice for the same crime.

9. In which case did the Supreme Court rule that state governments no longer had the authority to make private sexual behavior a crime? (p. 120) a) Webster v. Reproductive Health

Services b) Gonzales v. Oregon c) Lawrence v. Texas d) Bowers v. Hardwick e) Texas v. Johnson

10. Which of the following declared that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”? (p. 129) a) the Lily Ledbetter Fair Pay Act b) Title IV of the 1964 Civil Rights Act c) the DReAM Act d) the equal Rights Amendment e) Obergefell v. Hodges

11. In Bakke v. Board of Regents, the Supreme Court ruled (p. 129) a) race can never be used as a factor

in university admissions. b) achieving “adiverse student body”

was a “compelling public purpose” but a rigid quota system based on race was incompatible with the Fourteenth Amendment’s equal protection clause.

c) achieving “a diverse student body” was a “compelling public purpose,” but the method of a rigid quota of student slots assigned on the basis of race was incompatible with the Fourteenth Amendment’s equal protection clause.

d) achieving “a diverse student body” was a “compelling public purpose,” but affirmative action policies can only be used to give preferences to African Americans.

e) achieving “a diverse student body” was a “compelling public purpose,” but affirmative action policies can only be used to give preferences to Asian Americans.

141STUDY gU IDe

wtp12e_ess_ptr_ch04_096-143.indd 141 11/28/18 4:28 PM

Key Terms

affirmative action (p. 128) government policies or programs that seek to redress past injustices against specified groups by making special efforts to provide members of these groups with access to educational and employment opportunities

bill of attainder (p. 100) a law that declares a person guilty of a crime without a trial

Brown v. Board of Education (p. 123) the 1954 Supreme Court decision that struck down the “separate but equal” doctrine as fundamentally unequal; this case eliminated state power to use race as a criterion for discrimination in law and provided the national government with the power to intervene by exercising strict regulatory policies against discriminatory actions

civil liberties (p. 99) areas of personal freedom constitutionally protected from government interference

civil rights (p. 99) obligation imposed on gov- ernment to take positive action to protect citizens from any illegal action of govern- ment agencies and of other private citizens

“clear and present danger” test (p. 106) test to determine whether speech is protected or unprotected, based on its capacity to pres- ent a “clear and present danger” to society

double jeopardy (p. 116) the Fifth Amend- ment right providing that a person cannot be tried twice for the same crime

due process of law (p. 100) the right of every citizen against arbitrary action by national or state governments

eminent domain (p. 117) the right of govern- ment to take private property for public use

equal protection clause (p. 121) provision of the Fourteenth Amendment guaranteeing citizens “the equal protection of the laws”; this clause has served as the basis for the civil rights of African Americans, women, and other groups

establishment clause (p. 103) the First Amendment clause that says that “Con- gress shall make no law respecting an establishment of religion”; this law means that a “wall of separation” exists between church and state

exclusionary rule (p. 114) the ability of courts to exclude evidence obtained in violation of the Fourth Amendment

ex post facto laws (p. 100) laws that declare an action to be illegal after it has been committed

fighting words (p. 111) speech that directly incites damaging conduct

free exercise clause (p. 104) the First Amendment clause that protects a citizen’s right to believe and practice whatever reli- gion he or she chooses

grand jury (p. 116) jury that determines whether sufficient evidence is available to justify a trial; grand juries do not rule on the accused’s guilt or innocence

habeas corpus (p. 99) a court order demand- ing that an individual in custody be brought into court and shown the cause for detention

libel (p. 109) a written statement made in “reckless disregard of the truth” that is considered damaging to a victim because it is “malicious, scandalous, and defamatory”

Miranda rule (p. 117) the requirement, artic- ulated by the Supreme Court in Miranda v. Arizona (1966), that persons under arrest must be informed prior to police interroga- tion of their rights to remain silent and to have the benefit of legal counsel

prior restraint (p. 108) an effort by a gov- ernmental agency to block the publication of material it deems libelous or harmful in some other way; censorship; in the United States, the courts forbid prior restraint except under the most extraordinary circumstances

142 STUDY gU IDe

wtp12e_ess_ptr_ch04_096-143.indd 142 11/28/18 4:28 PM

selective incorporation (p. 102) the process by which different protections in the Bill of Rights were incorporated into the Four- teenth Amendment, thus guaranteeing citizens protection from state as well as national governments

“separate but equal” rule (p. 121) doctrine that public accommodations could be segregated by race but still be considered equal

slander (p. 109) an oral statement made in “reckless disregard of the truth” that

Abraham, henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2004.

Ash, Timothy garton. Free Speech. New haven, CT: Yale University Press, 2017.

Chen, Anthony S. The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972. Princeton, NJ: Princeton University Press, 2009.

eisgruber, Christopher. Religious Freedom and the Constitution. Cambridge, MA: harvard University Press, 2010.

King, Desmond, and Rogers M. Smith. Still a House Divided: Race and Politics in Obama’s America. Princeton, NJ: Princeton University Press, 2011.

Lee, Sonia Song-ha. Building a Latino Civil Rights Movement. Chapel hill: University of North Carolina Press, 2014.

Lewis, Anthony. Freedom for the Thought That We Hate: A Biography of the First Amendment. New York: Basic Books, 2010.

Nichols, Walter. The Dreamers: How the Undocumented Youth Movement Transformed the Immigrant Rights Debate. Stanford, CA: Stanford University Press, 2013.

Orth, John. Due Process of Law: A Brief History. Lawrence: University Press of Kansas, 2003.

Richards, Neil. Intellectual Privacy: Rethinking Civil Liberties in the Digital Age. New York: Oxford University Press, 2015.

Solove, Daniel. Nothing to Hide: The False Tradeoff between Privacy and Security. New haven, CT: Yale University Press, 2011.

Spitzer, Robert J. Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning. New York: Cambridge University Press, 2008.

Spitzer, Robert J. Guns across America: Reconciling Gun Rules and Rights. New York: Oxford University Press, 2015.

Waldman, Michael. The Fight to Vote. New York: Simon & Schuster, 2016.

is considered damaging to the victim because it is “malicious, scandalous, and defamatory”

strict scrutiny (p. 105) a test used by the Supreme Court in racial discrimination cases and other cases involving civil liberties and civil rights that places the burden of proof on the government rather than on the challengers to show that the law in question is constitutional

For Further Reading

143STUDY gU IDe

wtp12e_ess_ptr_ch04_096-143.indd 143 11/28/18 4:28 PM

Public Opinion

050505 chapter

WHAT GOVERNMENT DOES AND WHY IT MATTERS Americans can have quite different opinions on important issues, even citizens

who have had similarly vivid, harrowing experiences. In 1991, Suzanna Hupp

was eating lunch in a Texas restaurant when a man drove his truck through the

window and began shooting people. Hupp had often carried a handgun in her

purse, but had recently taken it out because Texas did not allow concealed carry

at the time, and she was afraid she would lose her license as a chiropractor if

caught. “Could I have hit the guy? He was fifteen feet from me. . . . Could I have

missed? Yeah, it’s possible. But the one thing nobody can argue with is that

it would have changed the odds.” The gunman killed 23 people, including her

parents. She has become a strong proponent of gun rights since then. “One of

my bugaboos is gun laws. Anytime we list a place where you can’t carry guns, to

me, that’s like a shopping list for a madman. . . . If you think about nearly every

one of these mass shootings, they have occurred at places where guns weren’t

allowed. That’s frustrating to me, particularly when you talk about schools.

Where do these madmen go? They go to schools and slaughter people.”1

wtp12e_ess_ptr_ch05_144-175.indd 144 11/28/18 4:28 PM

Public Opinion

Suzanna Hupp (left) and Justin Gruber (right) were both present during episodes of gun violence. These events pushed Hupp to advocate for more gun rights, and Gruber to speak out for more restrictive gun laws. How do political opinions form? And how do government officials respond to shifts in public opinion?

145

Fifteen-year-old Justin Gruber also survived a terrible shooting incident,

in a school: the shooting at the Marjory Stoneman Douglas High School in

Parkland, Florida, in February 2018. The incident left seventeen students and

teachers dead. But Gruber and many of his schoolmates reached the oppo-

site view of Suzanna Hupp, arguing for greater gun control, such as assault

weapons bans and increased age limits for purchase. Objecting to one

suggestion raised after the shooting, Gruber said that arming teachers is a

“terrible idea.” “Adding guns to solve a gun problem will increase the possible

negative outcomes,” he said. “Teachers shouldn’t have to be trained to carry

weapons. They are supposed to mold the minds of the next generation.”2

Some students formed a group, Never Again MSD, known by the hashtag

#NeverAgain, to advocate for tighter gun control.

The “consent of the governed”—demanded in the Declaration of

Independence—is critical for the functioning of a democracy. We expect

government to pay attention to the people. But whose opinion gets repre-

sented in public policy, particularly on issues such as gun rights and gun

wtp12e_ess_ptr_ch05_144-175.indd 145 11/28/18 4:28 PM

control where there are strong divides among the public? What is the role of

public opinion compared to that of other political actors, such as organized

interests? How well informed are people, and by what channels can individ-

uals have their voices heard? As we will see in this chapter, research shows

that public opinion does indeed have a significant impact on public policy. But

there are debates among scholars about whether the public is sufficiently

informed about politics, as well as whether elected officials represent the

interests of all Americans or only some Americans.

★ Define public opinion, and identify broad types of values and beliefs Americans have about politics (pp. 147–52)

★ Explain the major factors that shape specific individual opinions (pp. 152–57)

★ Explore when and why public opinion changes and the role that political knowledge plays (pp. 157–60)

★ Describe the major forces that shape public opinion (pp. 160–63)

★ Describe basic survey methods and other techniques researchers use to measure public opinion (pp. 163–69)

CHAPTER GOALS

146 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 146 11/28/18 4:28 PM

Public Opinion Represents Attitudes about Politics

The term public opinion refers to the attitudes citiz ens hav e about politi - cal issues, leaders, institutions, and events. I t is useful to distinguish between values and beliefs, on the one

hand, and attitudes and opinions, on the other . Values (or beliefs) are the basic princip les that shape a person’s opinions about political issues and ev ents. They constitute a person’s basic orientation to politics. Values underlie deep-r ooted goals, aspira - tions, and ideals that shape an individual’s perceptions of political issues and events. Liberty, equality of oppor tunity, and democracy , for example, ar e basic political values held by most Americans.

An attitude (or opinion) is a specific preference on a particular issue. An individual may have an attitude to ward American policy in the M iddle East or an opinion about economic inequality in the United States. The attitude or opinion may have emerged from a broad belief about the purpose of military intervention or about the role of government in the economy, but the opinion itself is very specific. Some attitudes may be shor t-lived and can change based on changing cir cumstances or new information.

Factors such as race, gender, income, age, religion, and region—which not only affect individuals’ interests but also shape their experiences and upbringing— influence Americans’ beliefs and opinions. F or example, blacks and whites often have different views on issues that touch upon civil rights and race relations, such as affirmative action, presumably reflecting differences of interest and historical expe- rience. Views expressed by men and b y women often v ary as w ell, especially on foreign policy questions, wher e women appear to be much mor e concerned with the dangers of war.

Political attitudes are increasingly influenced by partisanship (Republicans versus Democrats) and ideology (conser vatives versus liberals). For example, shor tly after taking office in January 2017, P resident Trump signed an ex ecutive order imme- diately halting the U.S. r efugee program and banning immigration to the U nited States from a half doz en predominantly Muslim countries, including S yria. The Supreme Court upheld the travel ban as constitutional, despite legal challenges. Opinion polls sho w 45 percent of Americans overall believ e that r efugees from Syria and I raq pose a serious thr eat to the w ell-being of the U nited S tates. B ut 63 percent of Republicans say refugees from the Middle East are a threat compared to 30 percent of Democrats.3

Opinions about issues and politics have strong emotional underpinnings as well.4 Emotions ar e traditionally measur ed b y sur vey questions asking if a candidate, politician, ev ent, or issue makes the r espondent feel fear ful, anxious, angr y, or enthusiastic. Donald Trump’s 2016 pr esidential campaign, for example, benefited from high enthusiasm fr om his suppor ters. Similarly high positiv e emotions may have given Barack Obama an advantage as the first African American president in

Define public opinion, and identify broad types of values and beliefs Americans have about politics

147PuBl IC OP IN ION RePReSeNTS ATT I TuDeS ABOuT POl I T ICS

wtp12e_ess_ptr_ch05_144-175.indd 147 11/28/18 4:28 PM

2008, overcoming racial resentment among some citizens.5 Contrary to the idea that public opinion is purely rational, feelings are complicated and often irrational; once individuals become emotionally attached to particular beliefs, they tend to hold on to those beliefs even in the face of contradictor y information. Using emotions as a guide, individuals form opinions quickly in response to current events.6

AMERICANS SHARE COMMON POLITICAL VALUES

Most Americans share a common set of v alues, including a belief in the principles, if not always the actual practice, of liber ty, equality, and democracy . The United States was founded on the principle of individual liberty, or freedom. Since the birth of our nation, Americans have always voiced strong support for the idea of liberty and typically support the notion that governmental interference in individuals’ lives and property should be kept to a minimum.

Similarly, equality of opportunity has always been an impor tant theme in Ameri - can society. M ost Americans believ e that all individuals should be allo wed to seek personal and material/economic success. M oreover, Americans generally believe that such success should be the r esult of individual effort and ability , rather than family connections or other forms of special privilege. Quality public education is one of the most impor tant mechanisms for obtaining equality of opportunity in that it allo ws individuals, regardless of personal or family w ealth, a chance to get ahead. Today, the internet is an impor tant example of equality of

Dramatic events, and the emotions they stir, can alter public opinion. In the aftermath of the violence erupting at a white nationalist rally in Charlottesville, Virginia, in 2017, seemingly everyone had an opinion of the state of race relations in America.

148 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 148 11/28/18 4:28 PM

opportunity by providing online access to news, politics, jobs, and other benefits of digital citizenship.7

Most Americans also believe in democracy. They believe that every citizen should have the opportunity to take par t in the nation’s governmental and policy-making processes and to have some say in determining how he or she is governed, including the right to vote in elections.8 Figure 5.1 shows there is consensus among Americans on fundamental values.

Obviously, the principles that Americans espouse have not always been put into practice. For 200 years, Americans embraced the principles of individual liberty and equality of oppor tunity while denying them in practice to generations of African Americans. Yet the strength of the principles ultimately helped o vercome practices that deviated from those principles.

AMERICA’S DOMINANT POLITICAL IDEOLOGIES ARE LIBERALISM AND CONSERVATISM

The application of America’s shared values to specific policies varies quite a bit. The set of underlying orientations, ideas, and beliefs through which we come to under- stand and interpr et politics is called a political ideology. In the United States today,

FIGURE 5.1

Americans Agree on Many Core Democratic Values SOURCE: Pew Research Center, “Broad Public Agreement on Importance of Many Aspects of a Strong Democracy,” March 2, 2017, www.people-press.org/2017/03/02/large-majorities-see-checks-and-balances-right-to-protest-as -essential-for-democracy/democracy_11/ (accessed 1/23/18).

Not too/Not at allSomewhatVery

89%

83%

79%

74%

64%

6 3

4

7

5

12

12

11

National elections are open and fair

PERCENTAGE WHO SAY EACH IS VERY, SOMEWHAT, OR NOT TOO/NOT AT ALL IMPORTANT TO MAINTAINING A STRONG DEMOCRACY IN THE UNITED STATES:

A system of checks and balances dividing power between the

president, Congress, and the courts

Rights of people with unpopular views are protected

People have the right to nonviolent protest

News organizations are free to criticize political leaders

18

20

149PuBl IC OP IN ION RePReSeNTS ATT I TuDeS ABOuT POl I T ICS

wtp12e_ess_ptr_ch05_144-175.indd 149 11/28/18 4:28 PM

a variety of ideologies compete for attention and support, but two ar e dominant: liberalism and conservatism.

Liberalism In classical political theory, a liberal was someone who favored individual initiative and was suspicious of governments and their ability to manage economic and social affairs—a definition akin to that of today’s libertarian. The proponents of a larger and mor e active government called themselv es progressives. In the early twentieth century, many liberals and progressives coalesced around the doctrine of “social liberalism,” which represented recognition that government action might be needed to preserve individual liber ty. Today’s liberals are social liberals rather than classical liberals.

In contemporar y politics being liberal has come to imply suppor ting political and social reform; extensive government intervention in the economy and progres- sive taxation; workers’ rights; the expansion of federal social services; more vigorous efforts on behalf of the poor, minorities, and women; and greater concern for con- sumers and the envir onment. Liberals generally suppor t r eproductive rights and rights for gays and lesbians and are concerned with protecting the rights of people accused of crimes, r efugees, and immigrants. I n international affairs, liberals often support arms control, aid to poor nations, and international organizations such as the United Nations; liberals generally oppose the development and testing of nuclear weapons and are suspicious of the use of American troops to influence the affairs of developing nations.

Conservatism By contrast, conservatives generally support the social and economic status quo and are suspicious of efforts to introduce new political formulae and eco- nomic arrangements. They believe strongly that a large and po werful government poses a threat to the freedom of individual citizens. Ironically, today’s conservatives support the vie ws of classical liberalism. Today, in the domestic ar ena, conser va- tives generally oppose the expansion of go vernmental activity and suppor t finding solutions to social and economic problems in the private sector, local communities, or by religious organizations. Conser vatives par ticularly oppose efforts to impose government r egulation on business and the envir onment, maintaining that regulation frequently leads to economic inefficiency, is costly, and can ultimately lower the entir e nation ’s standar d of living. I n terms of social policy , many conservatives suppor t school pray er and traditional family arrangements and ar e concerned about law and or der; conservatives generally oppose abor tion, same-sex marriage, drug legalization, and seek to reduce immigration to the United States. In international affairs, conservatism has come to mean support for military interven- tion and the maintenance of American militar y power as well as a desire to restrict immigration.

Other political ideologies also influence American politics. Libertarians, for example, argue that go vernment inter feres with fr eedom of expr ession, free mar - kets, and society and thus should be limited to as few spheres of activity as possible (national defense being a notable ex ception). Libertarians prefer government to be even smaller than that fav ored by conservatives. While liber tarians believe in less

150 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 150 11/28/18 4:28 PM

government inter vention in economic and social r ealms, socialists and the G reen Party argue that mor e government is necessar y to pr omote justice and to r educe economic inequality. 2016 Democratic presidential candidate Bernie Sanders calls himself a “democratic socialist”; Sanders wants government to ensure more equality of opportunity for citizens through free public college, single-payer health care, and increased taxation on the v ery affluent. He also suppor ts government policies to protect workers’ rights and unions. S ocialists are more to the ideological left than the mainstream Democratic Party.

Americans’ Ideologies Today Although many Americans subscribe to liber tar- ianism, socialism, or other ideologies in par t, most describe themselv es as either liberals, conservatives, or moderates. Figure 5.2 shows that the percentage of Ameri- cans who consider themselv es moderates, liberals, or conser vatives has r emained relatively constant since the 1990s. Gallup surveys indicate that as of 2017 35 per - cent of Americans considered themselves conservatives, 35 percent moderates, and 25 percent liberals. These numbers have r emained vir tually unchanged since the 1990s. But among young people aged 18–33, tr ends are different: just 15 per cent identify as conser vatives, while 41 per cent identify as liberals and 44 per cent as moderates (and independent from the political parties).9

FIGURE 5.2

Americans’ Ideology More Americans identify themselves as “conservatives” than “liberals.” During the period shown in this figure, however, Americans have had two Democratic presidents and have several times elected Democratic majorities to a house of Congress. What might account for this apparent discrepancy? What role do moderates play in the electorate? How stable is Americans’ ideology over time?

SOURCE: Lydia Saad, “Conservative Lead in U.S. Ideology Down to Single Digits,” Gallup, January 11, 2018, https://news.gallup.com/poll/225074/conservative-lead-ideology-down-single-digits.aspx (accessed 10/10/18).

0

10

1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 2016

20

30

40

50%

Liberal

Moderate

Conservative

151PuBl IC OP IN ION RePReSeNTS ATT I TuDeS ABOuT POl I T ICS

wtp12e_ess_ptr_ch05_144-175.indd 151 11/28/18 4:28 PM

AMERICANS EXHIBIT LOW TRUST IN GOVERNMENT

One of the most important measures of public opinion in a democracy is trust in gov- ernment. High levels of political trust create legitimacy for democratic government, whereas very low levels can cause concern. Many scholars and political pundits argue that Americans are becoming more and more disenchanted with traditional political institutions; public approval of Congress reached a low of only 10 percent in 2014.10

Why does public opinion in the form of tr ust matter? Declining trust has been linked to declines in political par ticipation and voting. Low confidence in govern- ment and elected officials is related to the perception that the government is unable to solve problems, spend money in an effective or efficient way, or r epresent the interests and policy preferences of average voters.11

The Pew Research Center has tracked trust in the federal government from 1958 to 2017 by asking this question on national surveys: “How much of the time do you trust the government in Washington?”12 The percentage of Americans who indicate they trust the government “just about always or most of the time” has fallen from 73 percent in 1960 to just 15 per cent in 2017. These trends span par ty lines. In 2017, 22 percent of R epublicans indicated they trusted government all or most of the time compar ed with 12 per cent of independents and 15 per cent of Democrats.

Political Socialization Shapes Public Opinion

People’s attitudes about political issues and elected officials tend to be shaped b y underlying political beliefs and v alues. F or example, an

individual who has negative feelings about government intervention in America’s economy and society would pr obably oppose the dev elopment of ne w social and health care programs. Similarly, someone who distrusts the military would likely be suspicious of any call for the use of U.S. troops. The processes through which these underlying political beliefs and v alues ar e formed ar e collectiv ely called political socialization.

Probably no nation, and cer tainly no democracy , could sur vive if its citiz ens did not share some fundamental beliefs. I f Americans had fe w common values or perspectives, it would be v ery difficult for them to reach agreement on par ticular issues. In contemporary America, some elements of the socialization pr ocess tend to produce differences in outlook, whereas others promote similarities. The agents of socialization that shape political beliefs ar e the family and social networ ks, social groups and race, political party affiliation, education, and political environment.

The Family and Social Networks Most people acquire their initial orientation to politics from their families. As might be expected, differences in family background tend to pr oduce div ergent political perspectiv es. Although r elatively fe w par ents

Explain the major factors that shape specific individual opinions

152 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 152 11/28/18 4:28 PM

spend much time directly teaching their children about politics, political conversa- tions occur in many households, and childr en tend to absorb the political vie ws of parents and other car egivers, often without r ealizing it. S tudies find, for example, that political par ty preferences ar e initially acquir ed at home. Childr en raised in households in which the primary caregivers are Democrats tend to become Demo- crats, whereas children raised in homes where their caregivers are Republicans tend to favor the Republican Party.13 Similarly, children reared in politically liberal house- holds are more likely than not to develop a liberal outlook, whereas children raised in politically conser vative settings ar e likely to see the world thr ough conservative lenses. Family, friends, coworkers, and neighbors are an important source of political orientation for nearly everyone.

Online social networ ks such as F acebook and Twitter may incr ease the r ole of peers in shaping public opinion. For example, after the 2015 Supreme Court deci- sion legalizing same-sex marriage nationwide, F acebook launched a “Celebrate Pride” tool that enabled users to giv e their profile pictures a rainbow-tinted back- ground to sho w their suppor t for gay rights, signaling to friends and family their opinion on this issue. I n the 72 hours follo wing the Cour t’s decision, 26 million individuals added this filter to their profile picture.14 This phenomenon was associ- ated with upticks in public support for same-sex marriage rights.15

Education O ften thought of as a gr eat equaliz er, education is also an impor tant source of differences in political perspectiv es. Governments use public education to try to teach all children a common set of civic values; it is mainly in school that Amer- icans acquire their basic beliefs in liberty, equality, and democracy. In history classes, students are taught that the Founders fought for the principle of liberty (freedom). In studying such topics as the Constitution, the Civil War, and the civil rights movement, students ar e taught the impor tance of equality . R esearch finds education to be a strong predictor of tolerance for racial, ethnic, and religious minorities.16 Through participation in class elections and student go v- ernment, students ar e taught the vir tues of democracy. These lessons are repeated in every grade and in many contexts.

At the same time, differences in formal education are strongly associated with differ- ences in political outlook. In particular, those who attend college are often exposed to modes of thought that will distinguish them from their friends and neighbors who do not pursue college diplomas. One of the major differences betw een college graduates

The family is one of the largest influences on a person’s political views. Children raised in conservative or liberal families, usually, but not always, hold those same views later in life.

wtp12e_ess_ptr_ch05_144-175.indd 153 11/28/18 4:28 PM

and other Americans is that higher levels of education are associated with greater involvement in politics. College graduates ar e more likely to vote, join campaigns, take part in protests, and generally make their voices heard.17

Social Groups and Public Opinion Another impor tant source of political v al- ues is the social gr oups to which individuals belong. S ocial groups include those that individuals haven’t chosen (national, r eligious, gender, and racial gr oups, for example) and those they join willingly (such as political par ties, labor unions, the military, and environmental, educational, and occupational groups). Group mem- bership giv es individuals experiences and perspectiv es that shape their vie ws of political and social life.

Race and Ethnicity Among the most impor tant of these is race. B lacks, for example, are a minority and hav e been victims of persecution and discrimination throughout American history. Blacks and whites thus often hav e different occupa- tional opportunities, live in separate communities, and may attend separate schools. Such differences tend to produce distinctive political outlooks. That black and white Americans have different views is r eflected in public perception of fair tr eatment across racial groups in the United States (see Figure 5.3).

In 2009, 80 per cent of African Americans said blacks and other minorities do not get equal tr eatment under the law; the number of whites giving this r esponse was just 40 percent.18 In the past few years, however, widely publicized incidents of excessive use of police for ce against African Americans ar ound the countr y, often resulting in their deaths, have begun to cause a shift in public opinion on this issue. By 2015, 90 per cent of African Americans agr eed that blacks and whites ar e not treated equally by police and 54 per cent of whites felt the same way , showing that while there is still a racial divide on this issue, opinions on it hav e changed signifi- cantly over the past fe w y ears.19 S trikingly, half of all Americans no w agr ee that racism is a big problem, compared to only 26 percent in 2009.20

Ethnicity also affects policy attitudes. Latinos are the fastest-growing minority population in the U nited States. Latinos’ shared Hispanic ethnicity contributes to a gr oup consciousness that shapes opinions. U nsurprisingly, immigration is one of the most impor tant policy issues among Latinos, with significant majori- ties of Latinos concerned about restrictive immigration politics and the threat of deportation. With respect to ideology, Latinos typically are supportive of govern- ment policy to impr ove the liv es of citiz ens and to r educe prevailing inequality, which includes favoring public funding for education, health, and welfare. While Latinos tend to be fairly religious, Latino Decision surveys find they do not allow their religious beliefs to dictate their political decisions—they are thus less likely to vote for conser vative politicians because of social issues. 21 This helps explain why a majority of Latinos supported Democratic candidate Hillary Clinton for president in 2016.

Gender Men and women hav e impor tant differences of opinion as w ell. R eflecting differences in social r oles and occupational patterns, women tend to oppose militar y

154 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 154 11/28/18 4:28 PM

FIGURE 5.3

Perception of Fair Treatment across Racial Groups In the United States, racial groups may not perceive race relations in precisely the same way. How, according to the data in this figure, do blacks and whites differ in their views on race relations? Which group is more likely to think that race relations are good? What factors help to account for these differences in perception?

SOURCE: Brakkton Booker, “How Equal Is American Opportunity? Survey Shows Attitudes Vary by Race,” National Public Radio, September 21, 2015, www.npr.org/sections/thetwo-way/2015/09/21/442068004/how-equal-is -american-opportunity-survey-shows-attitudes-vary-by-race (accessed 3/11/16); Samantha Neal, “Views of Racism as a Major Problem Increase Sharply, Especially among Democrats,” Pew Research Center, August 29, 2017, www.pewresearch.org (accessed 5/23/18).

In dealing with the police

On the job or at work

In local public schools

When voting in elections

54%

16%

15%

13%

48%

90%

54%

51%

38-point difference

PERCENTAGE SAYING BLACKS IN THEIR COMMUNITY ARE TREATED LESS FAIRLY THAN WHITES:

PERCENTAGE WHO:

36-point difference

Think “slavery and discrimination have created conditions that

make it dif�cult for blacks to work their way out of the lower class”

Support af�rmative action

30%

27%

70%

81%

40-point difference

54-point difference

Think “blacks should get by without special favors, just like

Irish, Italians, and Jews did”

69%

34% 35-point difference

Support Black Lives Matter movement

52%

82%

30-point difference

36-point difference

35-point difference

Black respondentsWhite respondents

155POl I T ICAl SOC IAl I zAT ION SHAPeS PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 155 11/28/18 4:28 PM

intervention more than men, ar e more likely than men to fav or policies to pr otect the environment, and are more likely to support government education and social programs. Perhaps because of these differences on issues, women are more likely than men to vote for Democratic candidates. This tendency of men’s and women’s opinions to differ is known as the gender gap. In 2018, only 30 percent of women approved of the job Donald Trump was doing as president, compared to 46 percent of men. This 16 percent gender gap is wider than for any other modern president.22 Table 5.1 shows that across different policy areas, men’s and women’s opinions vary from a 5- to 20-point difference.

Religion Religion is a more important predictor of opinion than previously recog- nized. Religious individuals ar e usually defined in surveys by religious affiliation, frequency of church attendance, and the belief that r eligion and prayer are impor- tant in their lives. One of the fastest-growing groups in America are those without religious affiliation, rising from 5–6 percent of the population in the 1990s to almost 25 per cent today.23 Among r eligious groups, white ev angelical Protestants tend to be ev en more conservative than Catholics. A 2014 study found that only 32 per cent of ev angelical P rotestants believ e abor tion rights for women should always be permitted, compared to 75 percent of those without religious affiliation. Similarly sharp differences in opinion are also found when it comes to other social issues, such as same-sex marriage. 24 White evangelicals and weekly churchgoers are much more likely to hold conservative views and be Republican, while the religiously unaffiliated are more likely to hold liberal views and favor the Democratic Party.

Party Affiliation Political party membership or loyalty is one of the most important factors affecting political orientation.25 We can think of par tisanship as r ed-tinted

TABLE 5.1

Disagreements among Men and Women on Public Policy Issues

On many policy issues, there is an approximately 5- to 20-point gap between the opinions of men and women. What might explain this consistent difference?

POLICY MEN WOMEN GENDER GAP

Support cutting defense spending 38 43 5 points

Support cutting domestic spending 43 34 9 points

Favor raising the minimum wage 68 81 13 points

Favor background checks to purchase guns 82 92 10 points

Support banning assault rifles 51 71 20 points

SOURCE: Brian Schaffner and Stephen Ansolabehere, “CCES Common Content, 2014,” Harvard Dataverse, V2, http://dx.doi.org/10.7910/DVN/XFXJVY (accessed 5/4/16).

156 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 156 11/28/18 4:28 PM

(referring to the Republican Party) or blue-tinted (referring to the Democratic Party) glasses that color opinion on a v ast array of issues. P artisans tend to r ely on par ty leaders and the media for cues on the appropriate positions to take on major political issues.26

According to r ecent studies, differences betw een D emocratic and R epublican partisans on a variety of political and policy questions are greater today than during any other period for which data ar e available. For example, 72 percent of Republi- cans oppose granting legal citizenship to immigrants with jobs in the United States, but only 34 per cent of D emocrats do. Seventy-six percent of D emocrats strongly favor go vernment policies to pr otect the envir onment compar ed to 30 per cent of Republicans.27 Wide differences in public opinion exist based on par tisanship involving energy, income inequality, infrastructure, job creation, immigration, cli - mate change, national defense, budget deficit, taxes, terr orism, trade, and much more. Democrats and Republicans also have different policy priorities.

Political Environment The conditions and events that exist when individuals and groups enter political life shape their political attitudes and values. Although politi- cal beliefs are influenced by family background and group membership, the content and character of these vie ws are, to a large extent, determined b y political circum- stances. For example, the baby-boom generation that came of age in the 1960s was exposed both to the Vietnam War and to widespr ead antiwar pr otests, which has made that generation suspicious of foreign wars. The September 11, 2001, terrorist attacks and the war on terr orism contributed to shaping the political liv es of those who came of age during that time, making them more concerned about security and safety and less opposed to foreign wars.

Political Knowledge Is Important in Shaping Public Opinion

What best explains whether citiz ens are generally consistent in their polit- ical vie ws or inconsistent and open to the influence of others? In general, knowledgeable citiz ens ar e better

able to evaluate new information and determine if it is r elevant to and consistent with their beliefs and opinions. 28 As a r esult, better-informed individuals can r ec- ognize their political interests and act consistently to further those interests. But political kno wledge is generally lo w in America. I n one widely r eported sur vey, 71 percent of Americans could not name their own member of Congress.29

This raises the question of how much political kno wledge is necessar y for one to act as an effective citizen. In an impor tant study of political kno wledge in the United States, researchers found that the average American exhibits little knowl- edge of political institutions, pr ocesses, leaders, and policy debates. 30 They also found that political kno wledge is not ev enly distributed thr oughout the popula - tion. Those with higher education, income, and occupational status and who are

Explore when and why public opinion changes and the role that political knowledge plays

157POl I T ICAl KNOWleDGe IS IMPORTANT IN SHAP ING PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 157 11/28/18 4:28 PM

members of social or political organizations ar e more likely to kno w about and be active in politics. D o these gaps or adv antages in political kno wledge matter? An interest in politics reinforces an individual’s sense of political efficacy (the belief that their actions and opinions matter) and pr ovides an incentive to acquire addi- tional kno wledge and information about politics. As a r esult, individuals with higher income and education also have more knowledge and influence and thus are better able to get what they want from government. For less-informed individuals, the media and political leaders may play a larger role in influencing public opinion. Low-informed individuals ar e more susceptible to fake ne ws, partisan news, and political propaganda than more informed individuals.

Shortcuts and Cues B ecause being politically informed r equires a substantial investment of time and energy, most Americans seek to acquir e political informa- tion and to make political decisions “ on the cheap ,” making use of shor tcuts for political evaluation and decision-making rather than engaging in a lengthy process of information-gathering. Researchers have found that individuals r ely on cues and information from party elites and the media to aid them in attitude formation. 31 Other “inexpensive” ways to become informed include taking cues fr om trusted friends, social networks and social media, relatives, colleagues, or religious leaders.32 By means of these informational shor tcuts, av erage citiz ens can form political opinions that are, in most instances, consistent with their underlying pr eferences. Studies show that even individuals with low levels of political knowledge are able to make relatively informed political choices by relying on these voter cues.

The public’s reliance on elite cues has taken on ne w significance in today’s era of party polarization. As the political parties and elected officials have become increasingly polarized, has this change affected the way that citizens arrive at their opinions? Researchers have found stark evidence that polarized political environ- ments fundamentally change ho w citiz ens make decisions and form opinions. Notably, polarization between the parties means that party endorsements (such as of an issue or candidate) have a larger impact on public opinion formation than they used to. At the same time, polarization decr eases the impact of other infor - mation on public opinion—that is, par ty polarization may actually r educe levels of political knowledge. Thus, elite polarization may have negative implications for public-opinion formation.33

Skim and Scan Another factor affecting political knowledge is the form in which people consume information. The transformation of political information in the digital era has had a pr ofound effect on the way the news is r eported and ho w citizens learn about politics, as more Americans get political news and information online. Recent research also indicates a tr end in journalism to ward shorter articles and flashier headlines. Americans today are likely to read the news by scanning and skimming multiple headlines online, in bits and b ytes, rather than by reading long news articles.34 Today, tweets from elected officials are an incr easingly important source of ne ws; Donald Trump relies on Twitter far mor e extensively than other elected officials, typically tweeting multiple times a day.

158 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 158 11/28/18 4:28 PM

Political knowledge matters because it may pr otect individuals fr om exposur e to misinformation than can distor t public opinion. While social media has cr e- ated ne w platforms for discussing politics and organizing, it has been associated with incr eased misinformation. F ake ne ws on F acebook—with a billion users globally—was extensive in the 2016 election. A study found that the top 10 fake news stories circulated on Facebook were shared more widely than the top 10 authen- tic ne ws stories about the election. A dditionally, R ussian Twitter “bot ” accounts have been linked to the posting of many of the fake news stories benefiting Trump and attacking Clinton. Since the election both Google and Facebook have imple- mented new protocols to block content from deceptive outlets, and Twitter deleted thousands of fake accounts. Misinformation from elected officials and online news has encouraged mor e Americans to seek w ebsites such as P olitiFact.com, FactCheck.org, and S nopes.com to v erify the content of political information. I t has also encouraged mor e Americans to turn to established media outlets, such as the Washington Post, Wall Street Journal, or the New York Times, for news.

Costs to Democracy? If political scientists are correct in their findings that many citizens base their opinions (and votes) on inadequate knowledge, fake news sources, and an o verreliance on cues fr om political elites, this raises a critical question: I f political knowledge is necessary for effective citizenship, how does a general lack of such knowledge affect the way we govern ourselves?

Although understandable and per - haps inevitable, lo w lev els of political knowledge and engagement w eaken American democracy in two ways. First, those who lack political inform a- tion cannot effectively defend their own political inter ests and can easily become losers in political str uggles. The presence of large numbers of politically inattentiv e or ignorant individuals means that political power can mor e easily be manipulated b y political elites, the media, and wealthy special inter ests. B ut other r esearch has sho wn that individuals ar e quite stable and rational in their policy for - mation. Notice that ev en when pub - lic opinion has shifted, as in the case of same-sex marriage, the shifts hav e been r elatively steady; w e don ’t see dramatic jumps up and down.

Second, if knowledge is power, then a lack of knowledge can contrib- ute to growing political and economic

After political opinions form, they remain relatively stable. The most knowledgeable people are gener- ally able to discern whether or not new information fits or contradicts their previously held beliefs. Do you think the people in this protest (top) would change their opinions about tax cuts after seeing President Trump’s tweet (bottom)?

159POl I T ICAl KNOWleDGe IS IMPORTANT IN SHAP ING PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 159 11/28/18 4:28 PM

inequality. When individuals are unaware of their interests or how to pursue them, it is virtually certain that political outcomes will not favor them.

The Media and Government Mold Opinion When individuals attempt to form opinions about particular political issues, ev ents, or personalities, they seldom do so in isolation. Typically,

they are confronted with—sometimes bombarded by—the efforts of a host of indi- viduals and gr oups seeking to persuade them to adopt a par ticular point of vie w. During the 2016 pr esidential election, someone tr ying to decide what to think about Hillary Clinton or Donald Trump could hardly avoid an avalanche of opin- ions expressed through the media, in meetings, or in conversations with friends. The marketplace of ideas is the interplay of opinions and views that occurs as competing forces attempt to persuade as many people as possible to accept a particular position on a particular issue. Given this constant exposure to the ideas of others, it is virtu- ally impossible for most individuals to resist some modification of their own beliefs. Three forces that play important roles in shaping opinions in the marketplace are the government, private groups, and the news media.35

THE GOVERNMENT LEADS PUBLIC OPINION

All governments try to influence, manipulate, or manage their citizens’ beliefs. But the extent to which public opinion is actually affected by governmental public rela- tions can be limited. O ften, governmental claims ar e disputed b y the media, b y interest groups, and at times even by opposing forces within the government itself.

This hasn’t stopped modern presidents from focusing a great deal of attention on shaping public opinion to boost suppor t for their policy agendas. Franklin Delano Roosevelt promoted his policy agenda directly to the American people through his famous “fireside chat” radio broadcasts. The George W. Bush administration devel- oped an extensive public-relations program to bolster popular suppor t for its poli - cies, including its war against terrorism. These efforts included presidential speeches, media appearances b y administration officials, numerous pr ess confer ences, and thousands of press releases presenting the administration’s views.36 Using the runway of an aircraft carrier as his stage, a confident Commander in Chief Bush, dressed in a flight suit, proclaimed the end of the Iraq War in 2003. His statement was prema- ture by eight years but was effective at maintaining public support for the Iraq War. Like his predecessors, President Obama was effective in shaping public opinion. He built support for his administration’s initiatives in domestic and foreign policy. But Obama’s White House was unique in using social media to promote the president’s policy agenda. Hourly posts on Facebook promoted Obama’s policies and campaign and served to personalize the president. Obama was the first to make use of Twitter, with 77 million followers.

Describe the major forces that shape public opinion

160 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 160 11/28/18 4:28 PM

Though Obama used Twitter, Donald Trump is the nation’s first Twitter presi- dent; he uses it pr omote his policy agenda, make go vernment announcements, attack opponents, defend himself , v ent his dismay , and shape public opinion. Often tweeting in the early morning hours, Trump communicates his sentiments on politics like no other pr esident in modern histor y. Laced with emotions and fr equent typos, his tw eets ar e authentic, if not always factually corr ect. New scholarship argues political leaders like Trump prefer social media to tra - ditional media because it allo ws them to contr ol the content unfiltered by the mainstream press.37

PRIVATE GROUPS ALSO SHAPE PUBLIC OPINION

Important political ideas in political life are developed and spread not only by gov- ernment officials but also by important economic and political groups searching for issues that will adv ance their causes. O ne especially notable example is abor tion, which has inflamed American politics over the past 40 y ears. The notion of a fetal “right to life,” whose proponents seek to outlaw abortion and overturn the Supreme Court’s 1973 Roe v. Wade decision, was dev eloped by conservative politicians who saw the issue of abor tion as a means of uniting Catholic and P rotestant conserva- tives and linking both gr oups to the R epublican Party, along with v arious right- to-life groups.38 Catholic and ev angelical Protestant religious leaders organiz ed to denounce abor tion from their chur ch pulpits and, incr easingly, from their televi - sion, radio, and internet pulpits, including the Christian B roadcasting Network. Religious leaders hav e also organiz ed demonstrations, pickets, and disr uptions at abortion clinics throughout the nation. 39 These efforts have helped win the enact - ment of stricter abortion laws in many states.

THE NEWS MEDIA’S MESSAGE AFFECTS PUBLIC OPINION

The media are among the most po werful for ces operating in the mar ketplace of ideas. As we shall see in Chapter 6, the mass media ar e not simply neutral messen- gers for ideas developed by others. Instead, they are very much opinion makers and have an enormous impact on popular attitudes. For example, since the publication of the Pentagon Papers by the New York Times and the exposur e of the Watergate scandal led by the Washington Post in the early 1970s, the national news media have relentlessly investigated personal and official wrongdoing on the par t of politicians and public officials. The continual media presentation of corruption in government has undoubtedly contributed to the general attitude of cynicism and distr ust that prevails in much of the general public.

At the same time, the ways in which media co verage interprets or “ frames” specific events can have a major impact on popular responses and opinions about these events (see Chapter 6). F or example, P resident George W. Bush went to great lengths to persuade the media to follow its lead in their coverage of Amer- ica’s r esponse to terr orism in the months follo wing the S eptember 11, 2001, attacks. The media mostly went along, pr esenting the administration ’s military

161THe MeD IA AND GOveRNMeNT MOlD OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 161 11/28/18 4:28 PM

campaigns in Afghanistan and Iraq, as well as its domestic antiterrorist efforts, in a positive light. Even supposedly liberal newspapers such as the New York Times, which had str ongly opposed B ush in the 2000 election, praised his leadership and published articles supportive of the president’s bellicose rhetoric against the Iraqi r egime prior to M arch 2003, when P resident Bush ordered the inv asion of Iraq. From the time Congr ess authorized military action in late 2002 to the invasion of Iraq in March 2003, months of presidential messages and media cov- erage focused on the threat of terrorism boosted public support from 50 percent to over 70 percent.40

GOVERNMENT POLICIES ALSO RESPOND TO PUBLIC OPINION

Studies generally suggest that elected officials pay attention to the preferences of the public.41 For example, one study explor ed the relationship between changes in opinion to ward v arious political issues and the policy outcomes that most closely corr espond to the issues. 42 The results show that shifts in public opin - ion on par ticular issues do in fact tend to lead to changes in public policy . One such example is in health care. A July 2009 Pew survey found that 65 percent of Americans favored a law “requiring all Americans to have health insurance, and government aid for those unable to afford it.”43 The federal government adopted the Affordable Health Care Act in 2010, which required health insurance for all citizens.

However, there is r eason to question whether pr evailing public opinion causes politicians to make policies that r eflect the general will or whether government policy in fact causes changes in public opinion. The relationship between govern- ment policy and opinion may be dynamic, wherein policy responds to opinion but opinion also shifts based on new government policies.44 Studies of whether govern- ment policy can affect public opinion have found it to hav e an effect in various policy areas, such as the environment, health care, welfare reform, the death penalty, and smoking bans.

To what extent do political leaders listen to the opinions of their constituents? To what extent should they listen? Is Calvin’s father right that leaders should do what they believe is right, not what the public wants?

CHAPTER 5 PuBl IC OP IN ION162

wtp12e_ess_ptr_ch05_144-175.indd 162 11/28/18 4:28 PM

Of course, sometimes public opinion and policy do not align, and officials may act on their own preferences or judgment if they believe it will benefit government or society.45 The bailout of the banks in 2008, for example, was carried out despite polls showing that a majority of Americans opposed this policy . When elected officials pursue policies not aligned with centrist opinion, it is often because they view particular groups of the electorate as more important than others. Inevitably, loyal voting blocs or interest groups that regularly contribute to a candidate may have their interests more closely represented than those of the general public.46

Measuring Public Opinion Is Crucial to Understanding What It Is

Today public officials make extensive use of public-opinion polls to help them decide whether to run for office, what policies to suppor t, ho w to v ote on important legislation, and what types

of appeals to make in their campaigns. All r ecent presidents and other major polit- ical figures have worked closely with polls and pollsters, as do major media outlets and other private organizations.

PUBLIC-OPINION SURVEYS ARE ACCURATE IF DONE PROPERLY

It is not feasible to inter view the mor e than 300 million Americans r esiding in the United States on their opinions of who should be the next pr esident or what should be done about impor tant policy issues. I nstead, pollsters take a sample of the population and use it to make infer ences (e.g., extrapolations and educated guesses) about the preferences of the population as a whole. F or a political survey to be an accurate r epresentation of the population, it must meet cer tain require- ments, including an appropriate sampling method, a sufficient sample size, and the avoidance of selection bias.47

Representative Samples One way to obtain a representative sample is what stat- isticians call a simple random sample (or probability sample), in which every individual in the population has an equal pr obability of being selected as a r espondent. Since we don’t have a complete list of all Americans, pollsters use census data, lists of households, and telephone numbers to create lists, drawing samples from regions and then neighborhoods within regions. Just as in a simple random sam- ple, everyone has an equal chance of being selected for the sur vey. Rolls of reg- istered voters are often used in political surveys designed to predict the outcome of an election.

Another method for drawing samples of the national population is a technique called random digit dialing of home landline and cell phone numbers. In this method,

Describe basic survey methods and other techniques researchers use to measure public opinion

163MeASuR ING PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 163 11/28/18 4:28 PM

Confidence in Democratic Institutions Parliaments, political parties, and the press are three institutions that play an important role in making democracy work. Parliament is the branch of government that most directly represents the voters; it serves as a major forum for policy debate and prevents abuse of executive power. Political parties offer different ideological goals, thereby helping to organize government, mobilize voters, and ensure political competition and accountability. Finally, the press plays an important “watchdog” role in politics,

informing voters and helping them hold their leaders accountable for their actions.

While these institutions are important to all democracies, we do notice that Americans tend to be much less confident in these institutions than are citizens in other democracies. This raises two important questions: Why are the u.S. scores so low, and what does it mean for politics when a large percentage of a population loses confidence in the institutions that keep its democracy functioning?

United States

Australia Mexico Brazil Japan Germany South Africa

India

23 13

20 16 13

28 30 22 25

46

16 21 20

44 44 54

36 43

66

34

51

24 15

71

PERCENTAGE OF THE POPULATION WHO HAVE “A GREAT DEAL” OR “QUITE A LOT” OF CONFIDENCE IN . . .

The Press Political Parties Parliament

SOURCE: R. Inglehart et al. (eds.), “World Values Survey: Round Six—Country-Pooled Datafile Version,” 2014, www.worldvaluessurvey.org (accessed 6/5/18).

wtp12e_ess_ptr_ch05_144-175.indd 164 11/28/18 4:28 PM

respondents are selected at random from a list of 10-digit telephone numbers, with every effort made to av oid bias in the constr uction of the sample. A computer random-number generator is used to produce a list of 10-digit telephone numbers. Given that 98 percent of Americans have telephones (cell phones or landlines), this technique usually results in a random national sample. Telephone surveys are fairly accurate, cost-effective, and flexible in the type of questions that can be asked; but many people refuse to answer political surveys, and response rates—the percent of those called who actually answer the survey—have been falling steadily and average less than 15 percent.48

Sample Size A sample must be large enough to provide an accurate representation of the population. Surprisingly, though, the size of the population being measur ed doesn’t matter, only the size of the sample. A survey of 1,000 people is just as effec- tive for measuring the opinions of all Texans, a state with 28 million residents, as the opinions of all Americans, with over 325 million residents.

Flipping a coin shows how this works. After tossing a coin 10 times, the num- ber of heads and tails may not be close to 5 and 5. After 100 tosses of the coin, though, the percentage of heads should be close to 50 per cent, and after 1,000 tosses, very close to 50 per cent. In fact, after 1,000 tosses, ther e is a 95 per cent chance that the number of heads will be somewhere between 46.9 percent and 53.1 percent. This 3.1 percent variation from 50 percent is called the sampling error (or margin of error)—a polling error that arises based on the small siz e of the sam- ple. That is, it is the amount of error we can expect with a typical 1,000-person survey. Normally, samples of 1,000 people are considered sufficient for accurately measuring public opinion thr ough the use of sur veys. When the media r efer to a “scientific poll” conducted by a highly respected polling firm, they actually mean a poll that has follo wed the steps just outlined: a poll based on a random (representative) sample of the population that is sufficiently large and avoids selection bias.

Survey Design and Question Wording Even with a good sample design, sur veys may fail to reflect the true distribution of opinion within a target population. O ne frequent source of measurement error is the wording of survey questions. The pre- cise words used in a question can hav e an enormous impact on the answ ers that question elicits. The reliability of survey results can also be adversely affected by poor question format, faulty ordering of questions, poor v ocabulary, ambiguity of ques - tions, or questions with built-in biases.

Often, seemingly minor differences in the wor ding of a question can conv ey vastly different meanings to respondents and, thus, produce quite different response patterns (see Bo x 5.1). F or example, for many y ears the U niversity of Chicago ’s National Opinion Research Center has asked r espondents whether they think the federal government is spending too much, too little, or about the right amount of money on “assistance for the poor.” Answering the question posed this way , about two-thirds of all r espondents seem to believ e that the go vernment is spending too little. However, the same survey also asks whether the government spends too much,

165MeASuR ING PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 165 11/28/18 4:28 PM

too little, or about the right amount for “welfare.” When the word welfare is substi- tuted for assistance for the poor, about half of all respondents indicate that too much is being spent.49 Today, pollsters are increasingly turning to the use of online surveys, often using similar techniques to those of telephone sur veys. B ut while internet surveys can be more efficient, less costly, and can have much larger samples, many online surveys do not use probability sampling (random sampling) and thus are not representative of the American population.

WHY ARE SOME POLLS WRONG?

The history of polling over the past century contains many instances of getting it wrong and learning v aluable lessons in the pr ocess. As a r esult, polling tech - niques hav e gr own mor e and mor e sophisticated, and pollsters hav e a mor e and more nuanced understanding of ho w public opinion is formed and ho w it is revealed.

Social Desirability Effects Political scientists have found that survey results can be inaccurate when the survey includes questions about sensitive issues for which individuals do not wish to shar e their tr ue pr eferences. For example, r espon- dents tend to o verreport voting in elections and the fr equency of their chur ch attendance. Why? These activities are deemed socially appr opriate, so ev en if the r espondents do not v ote or attend chur ch r egularly, they may feel social pressure to do so and thus may r espond inaccurately on a sur vey. This is called

BOX 5.1

It Depends on How You Ask

THE SITUATION The public’s desire for tax cuts can be hard to measure. In 2000, pollsters asked what should be done with the nation’s budget surplus and got different results depending on the specifics of the question.

THE QUESTION President Clinton has proposed setting aside approximately two-thirds of an expected budget surplus to fix the Social Security system. What do you think the leaders in Washington should do with the remainder of the surplus?

VARIATION 1 Should the money be used for a tax cut, or should it be used to fund new government programs?

VARIATION 2 Should the money be used for a tax cut, or should it be spent on programs for education, the environment, health care, crime fighting, and military defense?

SOURCE: Pew Research Center, reported in the New York Times, January 30, 2000, WK 3.

166 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 166 11/28/18 4:28 PM

the social desirability effect, wher eby r espondents r eport what they expect the interviewer wishes to hear or whatev er they think is socially acceptable rather than what they actually believ e or kno w to be tr ue.50 O n other topics, such as questions about income or alcohol and dr ug use, r espondents may feel self-conscious and so choose not to answer.

Many questioned the accuracy of public opinion polls during the 2016 pr esi- dential election, when D onald Trump performed better at the ballot bo x than in the polls. Because Trump is a polarizing and controversial figure, some people may have been r eluctant to tell inter viewers they suppor ted Trump or his policies. The fact that Hillary Clinton won nearly 3 million mor e votes than Trump nationwide suggests that the 2016 election polls were right after all, but polls did fail to predict that several key swing states would go to Trump.

Questions that ask directly about race or gender are particularly problematic. “Social desirability” makes it difficult to learn voters’ true opinions about touchy subjects such as racial attitudes because respondents hide their preferences from the interviewer for fear of social retribution. However, surveys can be designed to tap respondents’ latent or hidden feelings about sensitive issues without directly asking them to express overt opinions.

Selection Bias The importance of accurate sampling was br ought home early in the histor y of political polling when a 1936 Literary Digest poll pr edicted that the R epublican pr esidential candidate, Alf Landon, would defeat the Democratic incumbent, F ranklin D elano R oosevelt, in that y ear’s pr esidential election. The actual election ended in a Roosevelt landslide. The main prob- lem with the sur vey was what is called selection bias in drawing the sample. The pollsters had r elied on telephone dir ectories and automobile r egistration rosters to produce the survey sample. During the Great Depression, though, only wealth- ier Americans owned telephones and automobiles. Thus, the millions of working- class Americans who constituted R oosevelt’s base of suppor t were excluded from the sample.

Selection bias was also at play in preelection polls in the 2016 presiden- tial election. As noted abo ve, although most polls pr edicted the dir ection of the popular v ote corr ectly in H illary Clinton ’s fav or, they failed to pr e- dict the siz e of the v ote margin. A dditional r easons for the polling inaccu - racies included the use of “likely v oter models, ” which left out some gr oups that ended up v oting at higher-than-usual rates, such as r ural, non-college- educated, blue-collar voters who supported Trump in large numbers. Selection bias may have been at play , as well as nonresponse bias, where Trump supporters were less likely to respond to surveys.

In recent years, the issue of selection bias has been complicated b y the fact that growing numbers of individuals r efuse to answ er pollsters’ questions, or they use such devices as v oicemail and caller ID to scr een unwanted callers. I f pollsters could be certain that those who r esponded to their sur veys simply reflected the views of those who refused to respond, there would be no problem. Studies suggest that the views of r espondents and nonr espondents can differ, especially along social class

167MeASuR ING PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 167 11/28/18 4:28 PM

lines. Additionally, women are significantly more likely to answer telephone surveys than men. This can lead to incorrect inferences of public opinion.

Push Polling Push polls ar e not scientific polls and are not intended to yield accurate information about a population. I nstead, they inv olve ask - ing a r espondent a loaded question about a political candidate designed to elicit the r esponse sought b y the pollster and, simultaneously , to shape the r espondent’s per ception of the candidate in question. O ne of the most notorious uses of push polling occurred in the 2000 South Carolina Republican presidential primary, in which George W. Bush defeated John McCain and went on to win the presidency. Callers working for Bush supporters asked conserva- tive white voters if they would be mor e or less likely to v ote for McCain if they knew he had father ed an illegitimate black child. B ecause McCain often cam - paigned with a daughter whom he and his wife had adopted from Mother Teresa’s

Though public opinion is important, it is not always easy to interpret, and polls often fail to predict how Americans will vote. In 1948 election-night polls showed Thomas Dewey defeating Harry S. Truman for the presidency, which caused the Chicago Daily Tribune to incorrectly print a banner announcing Dewey’s win. In 2016 polls considerably favored Hillary Clinton over Donald Trump, causing many to doubt the possibility of Trump winning the election.

168 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 168 11/28/18 4:28 PM

orphanage in B angladesh, many v oters accepted the pr emise of the “ poll.” The purpose of such push polls is not to solicit opinions as much as to plant negative ideas about the opposing candidate—to, in this case, “push” McCain voters away from him.

The Bandwagon Effect Sometimes polling can ev en cr eate its o wn r eality. The so-called bandwagon effect occurs when polling r esults convince people to suppor t a candidate marked as the pr obable victor. This is especially true in the pr esidential nomination process, where there may be multiple candidates within one party vying to be the par ty’s nominee. A candidate who has “ momentum”—that is, one who demonstrates a lead in the polls—usually finds it considerably easier to raise cam- paign funds than a candidate whose poll standing is low. And with these additional funds, poll leaders can often afford to pay for television time and other campaign activities that will generate positiv e media attention and thus cement their adv an- tage. Wanting to highlight the momentum he felt he had in the 2016 election, Trump frequently cited his lead in the polls to mobilize his base and give them confidence that he would win.

Public Opinion WHAT DO WE WANT? A major purpose of democratic government, with its participatory procedures and rep-

resentative institutions, is to ensure that political leaders will heed the public will.

And, indeed, a good deal of evidence suggests that they do.51 However, it is not always

clear what the public will is. Mass shootings heighten the preferences of supporters

of both gun control and gun rights. Whose preferences prevail when attitudes differ

among groups? Or when they differ between the public and elites? Or between the

affluent and the poor? Some political scientists argue, however, that government pol-

icy is much less responsive to public opinion on the issues that really count and that

when the interests of elites are at stake, government officials are much more likely to

represent the opinions of the affluent than of the poor.52 People in lower-income groups

are less likely to actively seek out ways to express their political opinions than are

wealthier people (see the “Who Participates?” feature on p. 171).

New technology may be able to help. The migration of politics online has greatly

expanded the amount of information available and the ease of becoming informed.

Given this new media environment, we might expect public opinion to be more accu-

rate, even about the nuances of public policy. Digital citizenship offers the promise of a

more informed electorate, with citizens having multiple venues in which to translate their

opinions into political action and demand improved representation from political leaders.

The use of social media by students from the Marjory Stoneman Douglas High School to

argue for greater gun regulations shows digital citizenship in action.

169PuBl IC OP IN ION : WHAT DO We WANT?

wtp12e_ess_ptr_ch05_144-175.indd 169 11/28/18 4:28 PM

At the same time, social media raises concerns about the accuracy and consis-

tency of public opinion. Some research finds that the gap between the haves and

the have-nots in terms of political knowledge actually increases with the availability

of more information. The implications are significant, given the explosion of political

coverage online. The research suggests that with more information, public opinion may

actually be less consistent.53

Of course, technological change will continue; the media of 2040 will not be the

same as the media of 2020. Young adults will face a changing media environment,

just as their parents did. Such technological evolution may bring yet further changes

to our understanding of the relationship between public opinion, government, and the

media. New media may make it easier than ever for citizens to stay informed (or easier

to be misled) about the actions of their elected leaders or for leaders to learn about

their constituents’ preferences. What can citizens do to stay informed and make their

views known amid a changing media and political environment?

170 CHAPTER 5 PuBl IC OP IN ION

wtp12e_ess_ptr_ch05_144-175.indd 170 11/28/18 4:28 PM

WHO PARTICIPATES?

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

< $20,000 $20,000−$39,999 $40,000−$74,999 $75,000+By income group

Attended a town or city council meeting

26% 25% 28% 35%

Tried to contact a member of Congress

7% 9% 10% 15%

Attended a protest march

4% 4% 4% 3%

Signed a petition

19% 24% 24% 28%

Who Expresses Their Political Opinions?

SOURCE: American National Election Study 2016 time series, www.electionstudies.org (accessed 11/4/17).

wtp12e_ess_ptr_ch05_144-175.indd 171 11/28/18 4:28 PM

Practice Quiz

1. The term public opinion is used to describe (p. 147) a) the collected speeches and

writings made by a president during his or her term in office.

b) the analysis of events broadcast by news reporters during the evening news.

c) the beliefs and attitudes that people have about issues, events, elected officials, and policies.

d) decisions of the Supreme Court. e) any political statement that is

made by a citizen outside of his or her private residence or place of employment.

2. Today, the term refers to someone who generally supports the social and economic status quo and is suspicious of efforts to introduce new political formulas and economic arrangements. (p. 150) a) libertarian b) liberal c) conservative d) democrat e) Whig

3. Socialism refers to (p. 151) a) a political ideology that empha-

sizes social ownership, strong government, and reducing eco- nomic inequality.

Be an Informed Consumer of Opinion Polls

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

When you encounter information from opinion polls, consider the source of the poll, the question wording, and whether individuals were randomly selected to participate. Learn more at www.umich.edu/~numbers/polls.

Go to www.realclearpolitics.com to see polls about the same issues from different sources. Note the margins of error, and notice how aggregating polls makes a difference.

If asked, consider responding to an opinion poll—or take the initiative and express your views through one of the actions above.

172 STuDY Gu IDe

wtp12e_ess_ptr_ch05_144-175.indd 172 11/28/18 4:28 PM

b) a political ideology that emphasizes freedom and voluntary association with small government.

c) a political ideology that argues for the need to place strict limitations on voting rights and civil liberties.

d) a political ideology that argues a single ruler should have total control over every aspect of people’s lives.

e) a political ideology that argues gov- ernments are inherently repressive and should be abolished entirely.

4. The process by which Americans learn political beliefs and values is called (p. 152) a) brainwashing. b) propaganda. c) indoctrination. d) political socialization. e) political development.

5. Which of the following is not an agent of socialization? (p. 152) a) the family b) social groups c) education d) the political environment e) All of the above are agents of

socialization.

6. The fact that women tend to oppose military intervention more than men do is an example of (p. 156) a) the rally around the flag effect. b) partisan polarization. c) the peace paradox. d) the bandwagon effect. e) the gender gap.

7. Which of the following are the most important external influences on how political opinions are formed in the marketplace of ideas? (p. 160) a) the government, private groups,

and the news media b) the unemployment rate, the Dow

Jones Industrial Average, and the NASDAQ composite

c) random digit dialing surveys, push polls, and the bandwagon effect

d) the Constitution, the Declaration of Independence, and The Federalist Papers

e) the legislative branch, the execu- tive branch, and the judicial branch

8. Which statement best describes the relationship between public opinion and government policy? (p. 163) a) Public opinion almost never

influences government policy. b) Government policy almost never

influences public opinion. c) The relationship between govern-

ment policy and public opinion is dynamic, wherein government policy responds to public opinion but public opinion also shifts based on new government policies.

d) Public opinion always influences government policy because lawmak- ers are legally bound to enact the majority’s preferences.

e) Government policy never influences public opinion because most Americans pay very little attention to politics.

9. Which of the following is the term used in public-opinion polling to denote the small group representing the opinions of the whole population? (p. 163) a) control group b) sample c) micropopulation d) respondents e) median voters

10. A push poll is a poll in which (p. 168) a) the questions are designed to

shape the respondent’s opinion rather than measure the respond- ent’s opinion.

b) the questions are designed to measure the respondent’s opinion rather than shape the respondent’s opinion.

c) the questions are designed to reduce measurement error.

d) the sample is chosen to include only undecided or independent voters.

e) the sample is not representative of the population it is drawn from.

173STuDY Gu IDe

wtp12e_ess_ptr_ch05_144-175.indd 173 11/28/18 4:28 PM

Key Terms

agents of socialization (p. 152) social institutions, including families and schools, that help to shape individuals’ basic politi- cal beliefs and values

attitude (or opinion) (p. 147) a specific preference on a particular issue

bandwagon effect (p. 169) a shift in electoral support to the candidate whom public- opinion polls report as the front-runner

conservative (p. 150) today this term refers to those who generally support the social and economic status quo and are suspi- cious of efforts to introduce new political formulae and economic arrangements; conservatives believe that a large and powerful government poses a threat to citizens’ freedom

democracy (p. 149) a system of rule that permits citizens to play a significant part in the governmental process, usually through the election of key public officials

equality of opportunity (p. 148) a widely shared American ideal that all people should have the freedom to use whatever talents and wealth they have to reach their fullest potential

gender gap (p. 156) a distinctive pattern of voting behavior reflecting the differences in views between women and men

liberal (p. 150) today this term refers to those who generally support social and political reform, governmental intervention in the economy, more economic equality,

the expansion of federal social services, and greater concern for consumers and the environment

libertarian (p. 150) someone who empha- sizes freedom and believes in voluntary association with small government

liberty (p. 148) freedom from governmental control

marketplace of ideas (p. 160) the public forum in which beliefs and ideas are exchanged and compete

political ideology (p. 149) a cohesive set of beliefs that forms a general philosophy about the role of government

political socialization (p. 152) the induction of individuals into the political culture; learning the underlying beliefs and values on which the political system is based

public opinion (p. 147) citizens’ attitudes about political issues, leaders, institutions, and events

public-opinion polls (p. 163) scientific instruments for measuring public opinion

push polling (p. 168) a polling technique in which the questions are designed to shape the respondent’s opinion

random digit dialing (p. 163) a polling method in which respondents are selected at random from a list of 10-digit telephone numbers, with every effort made to avoid bias in the construction of the sample

11. A familiar polling problem is the “bandwagon effect,” which occurs when (p. 169) a) the same results are used over and

over again. b) polling results influence people to

support the candidate marked as the probable victor in a campaign.

c) polling results influence people to support the candidate who is trailing in a campaign.

d) background noise makes it difficult for a pollster and a respondent to communicate with each other.

e) a large number of people refuse to answer a pollster’s questions.

174 STuDY Gu IDe

wtp12e_ess_ptr_ch05_144-175.indd 174 11/28/18 4:28 PM

sample (p. 163) a small group selected by researchers to represent the most impor- tant characteristics of an entire population

sampling error (or margin of error) (p. 165) polling error that arises based on the small size of the sample

selection bias (surveys) (p. 167) polling error that arises when the sample is not repre- sentative of the population being studied, which creates errors in overrepresenting or underrepresenting some opinions

simple random sample (or probability sample) (p. 163) a method used by poll- sters to select a representative sample in

Asher, Herbert. Polling and the Public: What Every Citizen Should Know. 9th ed. Washington, DC: CQ Press, 2016.

Bartels, larry. Unequal Democracy: The Political Economy of the New Gilded Age. Princeton, NJ: Princeton university Press, 2008.

Berinsky, Adam. Silent Voices: Public Opinion and Political Participation in America. Princeton, NJ: Princeton university Press, 2005.

Bishop, George. The Illusion of Public Opinion. New York: Rowman and littlefield, 2004.

Clawson, Rosalee, and zoe Oxley. Public Opinion: Democratic Ideals and Democratic Practice. 2nd ed. Washington, DC: CQ Press, 2012.

erikson, Robert, and Kent Tedin. American Public Opinion. 9th ed. New York: Routledge, 2014.

Fiorina, Morris. Culture War: The Myth of a Polarized America. New York: longman, 2005.

Gallup, George. The Pulse of Democracy. New York: Simon and Schuster, 1940.

Ginsberg, Benjamin. The American Lie: Government by the People and Other Political Fables. Boulder, CO: Paradigm, 2007.

Jacobs, lawrence R., Fay lomax Cook, and Michael X. Delli Carpini. Talking Together. Chicago: university of Chicago Press, 2009.

lee, Taeku. Mobilizing Public Opinion. Chicago: university of Chicago Press, 2002.

lippman, Walter. Public Opinion. New York: Harcourt, Brace, 1922.

Norrander, Barbara, and Clyde Wilcox. Understanding Public Opinion. Washington, DC: CQ Press, 2009.

zaller, John. The Nature and Origins of Mass Opinion. New York: Cambridge university Press, 1992.

which every individual in the population has an equal probability of being selected as a respondent

social desirability effect (p. 167) the effect that results when respondents in a survey report what they expect the interviewer wishes to hear rather than what they believe

socialist (p. 151) someone who generally believes in social ownership, strong govern- ment, free markets, and reducing economic inequality

values (or beliefs) (p. 147) basic principles that shape a person’s opinions about politi- cal issues and events

For Further Reading

175STuDY Gu IDe

wtp12e_ess_ptr_ch05_144-175.indd 175 11/28/18 4:28 PM

The Media

060606 chapter

WHAT GOVERNMENT DOES AND WHY IT MATTERS When the chairman of the Federal Communications Commission, Ajit Pai, proposed

to end “net neutrality” in 2017, teenagers across the country leapt into

action. Many had lived their entire lives in an era of neutrality, aspects of

which began in 2006 and were codified by President Barack Obama in 2015.

Under net neutrality, internet service providers were regulated like a utility.

They could not block websites, slow some data transmission while imposing

fees for fast transmission, or charge consumers to connect to certain sites.

Chairman Pai asserted that such rules overregulated the internet. But many

teenagers, who get the majority of their news and information from the inter-

net, disagreed. They used social media to coordinate letter-writing, tweet, and

protest efforts.

Sixteen-year-old student Will Howes led a protest in front of a Verizon store

in Sioux Falls, South Dakota (Pai formerly worked for Verizon), arguing, “They

can throttle your Netflix, they can change your Google results. The right to

access information online is threatened.” His fellow protesters worried that

wtp12e_ess_ptr_ch06_176-203.indd 176 11/28/18 4:29 PM

The Media Net neutrality—the principle that all data and content on the web must be treated equally and not blocked or slowed for certain users—has been a hot-button issue. Anooha Dasari is just one of many young people who have spoken out and organized in support of net neutrality.

177

rural South Dakotans might get priced out of internet service, which was

already limited there. Teen protesters in front of a Keene, New Hampshire,

Verizon store had similar concerns about the price and availability of high-

speed internet, holding signs asking, “Hey Siri, how much does this sentence

cost?” As high school senior Harrison Hicks said, “The internet is imperative

to my education, and it’s really hard to be a self-starter and to teach yourself

the information you need without the internet especially since we’re the first

generation who’s grown up with the internet having been around our entire

lives.” Anooha Dasari, a high school junior from Mundelein, Illinois, who sent

classmates links for emailing the FCC, said, “For research, for news, to com-

municate with friends, the internet is a big part of my life. It has formulated

my personality, opinions and political ideology. If it is controlled, my generation

of students could be inclined to be just on one part of the spectrum. That’s

dangerous.” In December 2017, Chairman Pai cast the deciding vote to end

the neutrality rules. Dasari vowed to continue to fight: “I will tweet and email

and call and stay in the process.”

wtp12e_ess_ptr_ch06_176-203.indd 177 11/28/18 4:29 PM

The sharing of information, whether via traditional or digital media, is an

essential component of American democracy. So central is information to

citizen participation that the Constitution’s First Amendment guarantees free-

dom of the press, and most Americans believe that a free press is an essen-

tial condition for both liberty and democratic politics. Today, as the means

of communication has expanded, the media continue to play a central role

in American politics, not only in setting the agenda of topics that Americans

think about and discuss but also in shaping public opinion on political issues

and politicians. The political implications of this media system are significant.

Politics is increasingly defined by the individuals and groups who are best

able to blend older and newer media—using, for example, both television and

digital media to promote their message.

Discussing the right of press freedom, Thomas Jefferson wrote, “The basis

of our government being the opinion of the people, the very first object should

be to keep that right; and were it left to me to decide whether we should

have a government without newspapers or newspapers without a government,

I should not hesitate a moment to prefer the latter.”1 As the nature of media

has evolved, its centrality to government and politics has never waned. In

fact, in an era when politicians accuse each other and media members of

promoting “Fake News,” and people fight for or against control of internet

communications, a full understanding of America’s dynamic media landscape

may be more important than ever.

★ Describe the key roles the media play in American political life (pp. 179–82)

★ Discuss how digital media have transformed how citizens learn about politics (pp. 182–90)

★ Analyze the ways the media can influence public opinion and politics (pp. 191–97)

CHAPTER GOALS

178 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 178 11/28/18 4:29 PM

Media Have Always Mattered in a Democracy

Freedom of the pr ess is pr otected under the First Amendment to the U.S. Constitution, along with the most cherished individual rights in

American democracy, including fr eedom of speech and r eligion. The freedom to speak one’s mind in public is one of the most cherished of American political values.

Freedom of the press is the right to cir culate information and opinions in print and digital media without censorship b y the go vernment. I n the U nited S tates citizens and private companies have the right to publish newspapers, magazines, and other forms of digital media with few government restrictions. In many author- itarian countries there is no fr eedom of the pr ess and the government controls the news and political information through state-sponsored media.

The media serve three important roles in American democracy: to help inform the public about current political issues and events; to provide a forum through which candidates, politicians, and the public can debate policies and issues; and to act as a watchdog on the actions of the government and political actors.

Without the work of journalists and the media, democracy and self-government would not be possible. Individuals learn about politics, current events, government policy, and political candidates and parties from the news media. The information presented by the media allows citizens to cast informed decisions in elections and to form opinions about policy issues. This communication ensures that elected officials adopt policies consistent, for the most part, with the pr eferences of the citizens and serves as a counterweight to communication among elites, the wealthy, and corporations.

Perhaps most important, the media serve as a watchdog for the public, scrutiniz- ing the actions of elected officials on behalf of citizens, most of whom do not hav e the oppor tunity to closely follo w the actions of politicians and go vernment. The media are like an alarm system for a home—notifying the public of actions taken by government that may harm them. Important political news is reported on page 1 of print newspapers or in news alerts on your mobile phone. The media prioritize cov- ering major decisions by the government. They inform the public about important policy issues and expose those individuals and gr oups that exert power in politics, including their tactics and strategies. They reveal scandalous and illegal behavior of politicians, and therefore serve as a check on political power.

JOURNALISTS ARE NEWS-GATHERING PROFESSIONALS

Most practicing journalists receive training in schools of journalism and mass com- munication. Journalists are guided by standards in reporting the news in the public interest, known as the principles of journalism. Above all the news media seek to report the tr uth via fact-checking, v erification of sources, and inv estigative jour - nalism. This includes reporting factual claims by relying on legitimate sources, and

Describe the key roles the media play in American political life

179MeDIA HAVe AlWAyS MATTereD IN A DeMOCrACy

wtp12e_ess_ptr_ch06_176-203.indd 179 11/28/18 4:29 PM

citing people with cr edible positions, ey ewitnesses and par ticipants in ev ents, and documents associated with r ecognizable and cr edible institutions. The traditional news media aim to balance coverage of current events by providing objective treat- ment of opposing sides and avoiding including personal views of reporters or editors.

THE PROFIT MOTIVE DRIVES THE NEWS BUSINESS

The media are sometimes r eferred to as the four th branch of go vernment, as they provide a check on the power of government and political leaders.

Public broadcasting r efers to television, radio, and digital media that receive funding from the public through license fees, subsidies, or tax dollars. In most other democratic countries public broadcasting plays a major role in informing the public about politics and curr ent events. In contrast, public br oadcasting in the U nited States—such as National Public Radio or PBS—plays a very small role in the media system, at just 2 percent of market share, compared to 35 per cent in France, 40 percent in Germany, and 65 percent in Denmark.

For-profit private companies dominate U.S. political media. M edia companies earn most of their r evenue from advertising, rather than subscriptions, although revenue from subscriptions has been incr easing. This means media actors—from journalists to editors to the o wners of media companies—ar e motivated by what audiences want, because higher ratings generate more advertising revenue. Because of the need to r each wide audiences to sell adv ertisements, the U.S. media ar e more focused on soft news—such as entertainment, sports, and celebrity news— than are European media, which provide more hard news coverage of politics and civic events. And when it comes to political ne ws, American media tend to focus increasingly on dramatic, highly conflictual events and issues. S ensational stories of scandals or candidate attacks often generate more interest—and thus revenue— than the stories of ev eryday governing and details of public policy . Nonetheless, objectivity is still the goal, and standar d practice is that ne ws, opinion, and ads should be separate and distinct; that is why the opinions of editors are reserved for the opinion pages.

The profit motive of the news industry may have contributed to Donald Trump’s unexpected victory in the 2016 election. Due to the novelty of a television celebrity running for president, Trump’s campaign was a financial boon for the media indus- try. His candidacy received double the media coverage of his Democratic opponent Hillary Clinton and his Republican challengers in the primaries. CBS head Les Moonves said the Trump phenomenon “may not be good for America, but it’s damn good for CBS. . . .” The money to the television station was “rolling in.”2

MORE MEDIA OUTLETS ARE OWNED BY FEWER COMPANIES

A key feature of the traditional media in the United States is the concentration of its o wnership. A small number of giant corporations contr ol a wide swath of media holdings, including television networ ks, movie studios, r ecord companies, cable channels and local cable pr oviders, book publishers, magazines, ne wspapers,

180 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 180 11/28/18 4:29 PM

and increasingly online and digital media outlets. Large global corporations o wn much of the media offline and online.3 Media monopolies, such as that of The Walt Disney Company, hav e pr ompted questions about whether enough competition exists among traditional media to pr oduce a tr uly diverse set of vie ws on political matters.4 In 2019, for example, Disney purchased 21st Century Fox to become the third largest media company in the U nited States. As major newspapers, television stations, and radio networks fall into fewer hands, the risk increases that politicians and citiz ens who expr ess less popular or minority vie wpoints will hav e difficulty finding a public forum.

The actual number of traditional news-gathering sources operating nationally is actually quite small—several wire services, four broadcast networks, a few elite print newspapers, and a smattering of other sour ces, such as a few large local papers and several small, independent radio networ ks. More than thr ee-fourths of the daily print newspapers in the United States are owned by large media conglomerates such as the H earst, McClatchy, and G annett corporations. M uch of the national ne ws that is published by local newspapers is provided by one wire service, the Associated Press. More than 500 of the nation’s television stations are affiliated with one of just four networks and carry that network’s evening news programs.

The trend in concentration of traditional media o wnership occurr ed in large part due to the r elaxation of go vernment regulations in the 1980s and ’90s. The

Though the media generally attempt to remain unbiased, a number of media figures and outlets are distinctly left- or right-leaning, such as Rachel Maddow of MSNBC and Tucker Carlson of Fox News. Consumers are increasingly turning to partisan media, reflecting a tendency to self-select information that already conforms with their beliefs, making it more difficult to objectively evaluate information.

181MeDIA HAVe AlWAyS MATTereD IN A DeMOCrACy

wtp12e_ess_ptr_ch06_176-203.indd 181 11/28/18 4:29 PM

enactment of the 1996 Telecommunications A ct opened the way for additional consolidation in the media industry, and a wave of mergers and consolidations has further r educed the field of independent media across the countr y. But as mor e digital-only news sources come online, these trends toward concentration in media ownership may reverse.

The Media Today The past three decades have resulted in a massiv e transformation of the U.S. ne ws media. N ew competition from free digital sour ces has put pr es- sure on traditional subscription-based

news sour ces as Americans hav e migrated to r eading the ne ws online. Today 93 percent of adults hav e read the news online.5 This picture is very different from the early 2000s, when most Americans said that after television, print newspapers were their main sour ce for ne ws, and less than 20 per cent read the ne ws online.6 Though not r eplacing losses in subscription and traditional adv ertising r evenue, digital advertising revenue continues to grow.7

Despite the digital transformation of the ne ws media, much of what makes the media important in American politics r emains the same. M ajor newspapers and TV networks—even if their content is increasingly delivered in digital form—remain pop- ular and important sources of news. Political leaders are successful in making head- line news and setting the news agenda. And journalists trained in professional schools create and develop much of what we consume as news, including original reporting.

But mor e and mor e, the media ar e online companies facing an envir onment where anyone with access to an internet connection can publish the news. There are still only a small number of organizations that have credibility and the largest audi- ences, however.8 The leading newspapers in the United States, such as the New York Times, the Wall Street Journal, and the Washington Post, receive some of the highest traffic online.

Before the internet, journalism organizations largely controlled the news through original reporting, writing and production, packaging and deliv ery, and selecting editors. Over time, technology companies like F acebook, Apple, Google, and Amazon have become major players in the content and delivery of the news. These companies are partners in the business of journalism, fr om the financial side to how the news is produced and delivered to consumers. They report the news using advanced technol- ogy, engineering, and market research to push specific news alerts to specific people, based on their inter ests and preferences. And it seems to be wor king: Facebook and Google, for example, generate the most digital advertising revenue for newspapers.9

The interdependence between technology and media companies continues to grow, r epresenting a major change in the industr y. In one of the latest tr ends, technology companies and their CEOs have been purchasing or developing major news media companies, such as the creation of the Intercept by Ebay founder Pierre

Discuss how digital media have transformed how citizens learn about politics

182 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 182 11/28/18 4:29 PM

Omidyar, or the pur chase of the Washington Post by Amaz on CEO J eff Bezos. Both the Intercept and the Washington Post have a reputation for forceful investiga- tive journalism and original reporting. And at Facebook, editors control trending topics in the news on the global platform, a key editorial role in what makes the headline news.

Beyond making the news profitable again, these high-tech collaborations are changing how Americans learn about current events. The tech world has long valued transparency, networked environments, and par ticipation.10 This is evident in the growing number of Americans who r ead news by using social networ k platforms, such as Twitter or Facebook. How citizens read the news has changed in the digital age, but the role of the media in politics remains as important today as during the founding of our nation.

Americans get their ne ws fr om (1) ne wspapers and magazines; (2) broadcast media (radio and television); and, increasingly, (3) digital media. Each of these three sources—newspapers, broadcast, and digital—has distinctive characteristics.

NEWSPAPERS STILL SET THE STANDARD FOR NEWS REPORTING

Newspapers are the oldest medium for the dissemination of the news, though most Americans read digital versions of print media today. Newspapers have an especially influential audience because they help set the political agenda for the nation. Their audience of political elites r elies on the detailed co verage provided by professional journalists to inform their views about public matters.

The emergence of newspapers (and later radio and television networ ks) as mass-production businesses driv en primarily for pr ofit had major implications for the role of the media in politics in the late nineteenth and early tw entieth centuries. The development of standardized reporting and writing practices emphasizing objec- tivity in political news coverage was motivated in part as a way to generate revenue for media organizations. The owners of large newspaper companies determined that the best way to make a pr ofit was to appeal to as broad an audience as possible, which meant not alienating potential readers who held liberal or conservative politi - cal views. This, in turn, required methods to train and “discipline” reporters to pro- duce a standardized, seemingly neutral news product. In contrast, some native digital news is much less likely to be value neutral like journalism from legacy media outlets.

These journalistic practices were successful in attracting audiences, and for a long time, most cities and to wns in the countr y had their o wn ne wspaper. However, for most traditional ne wspapers, recent decades hav e been financially challenging. Competition fr om broadcast media and fr ee content online, com - bined with simultaneous declines in adv ertising r evenue and cir culation lev els, have undermined the traditional business model of newspapers.11 In 2018 there were roughly 39,210 working journalists, down from a high of 60,000 a decade befor e.12 Estimates indicate daily ne wspaper print cir culation has declined by over 30 per cent over the past 20 y ears.13 Lower circulation leads to lower advertising revenue.

183THe MeD IA TODAy

wtp12e_ess_ptr_ch06_176-203.indd 183 11/28/18 4:29 PM

Following the 2016 election, ho wever, some major U.S. ne wspapers r eported a sharp increase in digital subscriptions.14 The New York Times added more than 500,000 digital subscriptions in 2016—a 47 per cent incr ease fr om the pr evious year—while the Wall Street Journal had a 23 percent increase over the previous year and the Chicago Tribune a 76 percent increase. The newspaper industry as a whole, however, continues to face declines in circulation and ad r evenue. The New York Times saw a 9 percent decline in advertising revenue but a 3 percent rise in circula- tion revenue, for an overall revenue decline of 2 percent in 2016.15

For most newspapers today, non-ad revenue comes mainly from digital subscrip- tions rather than print circulation. This model allows a certain number of free visits before requiring users to pay and appears to be a viable business model for the digital press. Digital subscription models have not been as viable for many smaller or mid- sized local, regional, and even big-city papers, however. Legacy newspapers face the greatest competition from digital-only news outlets, such as B loomberg News, the Drudge Report, and a host of others. And the pace of technological change in the news media shows no signs of slowing down.16

BROADCAST MEDIA ARE STILL POPULAR

Television ne ws r eaches mor e Americans than any other single ne ws sour ce (Figure 6.1). I t is estimated that o ver 95 per cent of Americans hav e a television, and tens of millions of people watch national and local ne ws programs every day. Television news, however, generally co vers relatively few topics and pr ovides little depth of coverage. It serves the important function of alerting viewers to issues and events—headline news—via brief quotes and short characterizations of the day’s events. Furthermore, broadcast media do very little of their own reporting, instead relying on leading newspapers or digital media to set their ne ws agenda. Print and digital media, as written text, also provide more detailed and complete information than radio or television media, offering a better context for analysis.

Because they ar e aware of the character of television ne ws coverage, politicians and others often seek to manipulate the ne ws by providing the media with sound bites that will dominate ne ws coverage. Sound bites can wor k for or against poli - ticians. During the 2016 pr esidential election, calls for depor ting undocumented immigrants were a frequent sound bite topic from candidates such as Donald Trump.

Twenty-four-hour cable ne ws stations such as MSNBC, CNN, and F ox News offer more detail and commentary than the half-hour evening news shows found on the three broadcast news stations—ABC, NBC, and CBS. P ew reports that com - bined average viewership for the ABC, CBS, and NBC evening newscasts remained stable in 2016 at about 24 million.17

Politicians generally consider local broadcast news a friendlier venue than the national ne ws. National r eporters ar e often inclined to criticiz e and question, whereas local and state reporters are more likely to accept the pr onouncements of national leaders at face value. Local TV continues to be a major sour ce of news, especially for older Americans, though its importance as a news source is decreas- ing among the y ounger generation in fav or of social media such as F acebook.

184 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 184 11/28/18 4:29 PM

Generally, ho wever, Americans ’ r eliance on television does not appear to be going away.

RADIO HAS ADAPTED TO MODERN HABITS

Radio is another br oadcast ne ws sour ce that has ev olved with the popularity of podcasting. In the 1990s talk radio became an impor tant source of commentary as well as entertainment. Conservative radio hosts, such as R ush Limbaugh and Sean Hannity, have huge audiences and hav e helped to mobiliz e support for conser va- tive political causes and candidates. I n the political center or center left, N ational Public Radio (NPR) is a co veted source for in-depth political r eporting. In recent years radio ne ws listening has experienced significant growth; in 1990 ther e were 400 radio stations, a number that has grown to over 2,000 today.

Broadcast radio includes traditional AM/FM radio and digital formats such as online radio and podcasting. While AM/FM radio reaches almost all Americans and

FIGURE 6.1

Americans’ Main Sources for News The media landscape for news has seen remarkable shifts in a short period of time. Twenty years ago, more than 80 percent of Americans watched news on television and more than half read news in a newspaper. Today, fewer Americans watch news on TV and just over one- quarter read the newspaper. What media source has gained rather than lost its audience?

SOURCE: “Americans’ Online News Use Is Closing in on TV News Use,” Pew Research Center, September 5, 2017, www.pewresearch.org (accessed 5/23/18).

1991 1995 1999 2003 2007 2011 2013 2015 2017

TV

Radio

Newspaper Internet

0

10

20

30

40

50

60

70

80

90

100%

PERCENTAGE OF U.S. ADULTS WHO OFTEN GET THEIR NEWS ON EACH PLATFORM

185THe MeD IA TODAy

wtp12e_ess_ptr_ch06_176-203.indd 185 11/28/18 4:29 PM

remains steady in its revenue, online radio and podcasting have expanded rapidly in the past decade, steadily growing to 64 percent of Americans who tuned in during the last month of 2018, up from 12 percent in 2007. While public broadcasting has a much smaller shar e of the total media mar ket in the United States than in other countries, National Public Radio is still popular and an important way for people to learn about politics. I n 2017 there were 5.4 million unique do wnloads of NPR podcasts every week, a number that continues to grow.18 Mobile devices, including satellite radio and cell phones, hav e triggered a growth in radio use as online radio listening can occur nearly anywhere. Listening to radio news while commuting is a primary way many Americans become informed about politics.19

Comedy Comedy talk shows with political content, such as The Daily Show, The Late Show, and Saturday Night Live, attract millions of television vie wers. These shows use humor, sarcasm, and social criticism to discuss serious topics, gener- ally co vering almost ev ery major political ev ent. Pew sur veys hav e sho wn that these talk sho ws ar e impor tant sour ces of political ne ws, especially for y oung people and liberals, and that follo wers of comedic talk sho ws are well informed about politics.20

DIGITAL MEDIA HAVE TRANSFORMED MEDIA HABITS

The impact of the internet in mass communication in the twenty-first century parallels that of the printing pr ess in nineteenth-centur y America, which saw the rise of the penny press and widespread literacy.21 Today, even as the print newspaper business has consolidated, readership of online news has soared. Digital media have become the media of choice for all age gr oups below 50. In 2000 just 35 per cent of adult internet users said they looked for ne ws or information about politics or the upcoming campaigns online. 22 As of 2016 that number had risen to 9 in 10 Americans.23

News aggregators, such as G oogle News, Reddit, and RealClearPolitics, generally compile and repackage stories that w ere created by other sources, and then deliv er them online to consumers in conv enient formats. They serve as a platform that allows users to share and comment on the news. Some of this content is produced by digital-only news organizations, mainstream media, social movement organizations, ordinary users, and other “ amateurs,” as well as powerful political groups, govern- ments, candidates, nonprofits, corporations, and professional media organizations. News aggr egators cover thousands of ne ws stories each day , as w ell as the latest public-opinion polls and their own synthesis of the headline news.

Rather than merely providing a forum to connect with friends and family, social media are spaces for learning about politics and now a primary source for news—a dramatic change fr om just a fe w y ears ago . A majority of American adults— 67 percent—gets news on social media (Figure 6.2).24 The trend in using social media for political information continues to gr ow at a rapid rate acr oss all demo - graphic groups.

186 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 186 11/28/18 4:29 PM

Online media are more diverse and have created a more participatory press, one in which citizens and nonprofit organizations now play a prominent role, and jour- nalists regularly interact with r eaders via social media, especially Twitter. Readers can now post comments online, upload videos, and par ticipate in a community , providing feedback on almost all online ne ws articles. Digital media hav e created more information and a more vibrant media environment.

The term digital citizenship refers to the ability to participate in culture and poli- tics online. In much the same way that education and literacy promoted democracy and economic gr owth in the nineteenth centur y, today’s internet has the poten - tial to benefit society as a whole by facilitating political par ticipation and social inclusion through greater access to political information and ne ws.25 The internet

FIGURE 6.2

Social Media and the News Many Americans who use social media use those sites as a way to obtain political news. This graph shows the percentage of American adults who use each social media site compared with the percentage who report getting news from that site. What are the advantages of getting news on social media, and what are some potential drawbacks?

SOURCE: Jeffrey Gottfried and Elisa Shearer, “News Use across Social Media Platforms 2017,” Pew Research Center, September 7, 2017, www.journalism.org/2016/05/26/news-use-across-social-media-platforms-2017/ (accessed 5/15/18).

Facebook YouTube Twitter LinkedIn redditInstagram

58%

18% 15%

11%

26%

7%

21%

5% 6% 4%

66%

45%

PERCENTAGE OF ADULTS WHO . . .

Use the social networking site Get news from the site

187THe MeD IA TODAy

wtp12e_ess_ptr_ch06_176-203.indd 187 11/28/18 4:29 PM

helps provide the information and skills needed for democratic engagement and economic opportunity.26

However, regular and effective use of the internet requires high-speed access and digital literacy to evaluate and use information online.27 Individuals without access or the skills to use the internet may be increasingly uninformed and excluded from the world of politics online. In 2018, 73 percent of Americans were digital citizens, individuals with home high-speed access and the technology and literacy skills to use it. Access to the internet is also shaped b y income and education. While only half of the working poor (those earning less than $20,000 a year) had home broad- band, 85 per cent of those earning mor e than $100,000 a y ear did. S ixty-three percent of high school graduates hav e home br oadband compar ed with almost 90 percent of college graduates.28 These data suggest that there are significant ine- qualities in access to digital media, what is called the digital divide.29 Because digital media are essential to par ticipation in society, some argue that go vernment has a responsibility to provide affordable and universal access, as provided by most other democratic countries.

Digital-Only News Organizations The last decade has seen the rise of niche journal- ism and digital-only publications, or “born digital” news outlets. Bloomberg News, one of the most successful specialty online sources, has hundreds of thousands of readers paying an annual fee for detailed business-related news. In politics, the Hill, the Blaze, Vice, Vox, BuzzFeed, and the Drudge Report are the niche leaders, with detailed political reporting. FiveThirtyEight specializes in data journalism, pr ovid- ing election forecasts but also broad coverage including sports, science, and lifestyle. Breitbart News, formerly under the leadership of S teve Bannon (Donald Trump’s chief strategist for the 2016 campaign) has become a key source of political informa- tion for far-right populist conservatives.

Social Media and Filtering While television remains the main source of news for one in two Americans, y oung people ages 18–33 incr easingly learn about politics and news online and are significantly less likely than older Americans to turn to local TV. Seventy-eight percent of people under age 50 get their news from social media. What factors might account for these generational differences?

Social media, such as Twitter and F acebook, tend to be a secondar y source for news after television for many Americans, but ar e a primary source for the y oung. The high rate of exposure to political ne ws via social media is notable since y oung Americans overall are less engaged in politics—just 46 percent of people ages 18–29 voted in the 2016 election compar ed to 59 per cent for the 30–44 age gr oup.30 As the web becomes an increasingly important source for political news, young people may become more engaged in politics.

Because they ar e mor e personaliz ed and interactiv e than anonymous ne ws organizations, social media allo w Americans to learn about politics and political news fr om each other . Growing use of social media for ne ws is evident acr oss all demographic gr oups, including older people, women and men, and gr oups defined by race, education, and income. Two-thirds of Americans use social

188 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 188 11/28/18 4:29 PM

media.31 With President Trump tweeting multiple times per day, as well as its use by congr essional leaders and other politicians, social media hav e become ne ws sources in their own right, as well as forums to share news published in the main- stream media.

Facebook provides a more interactive forum for learning about politics than does Twitter, with users more likely to post and respond to news about government and politics. Twitter’s strength is in providing news coverage as it happens, focusing on live events. More than two-thirds of users of both sites say they hav e posted about news at least at some point. Compared to passively watching television or reading the news, this is a high rate of engagement.32

Social media also pr ovide a platform for citiz ens to be directly engaged with political candidates and elected officials, who have been quick to adopt F acebook and Twitter as means of communicating with their suppor ters and filtering the daily news for them. I n their book Tweeting to P ower, Jason Gainous and K evin Wagner argue that using social media is ho w citizens learn about politics: “S ocial media alters the political calculus in the U nited States by filtering who controls information, who consumes information, and how that information is distributed.” Because the networks operate outside of traditional media and users can pick their own friend networks and avoid disagreeable ideas and information, parties, groups, and political candidates are able to directly dictate the content of these informa- tion networks. Their study finds individuals who are more active politically online and read the news using social media hold stronger partisan opinions. This means using social media for r eading the ne ws can exaggerate par ty polarization among the mass public.33

CITIZEN JOURNALISM GIVES PEOPLE NEWS POWER

Digital ne ws is cr eating a ne w generation of whistle-blo wers, enhancing the media’s traditional r ole as a watchdog for the people against go vernment cor - ruption. A distinguishing featur e of this phenomenon is the dev elopment of citizen journalism, which is interactiv e and par ticipatory. Citiz en journalism includes news reporting and political commentary by ordinary citizens and even crisis coverage from eyewitnesses on the scene, thus inv olving a wider range of voices in gathering ne ws and interpr eting political ev ents. The near-universal availability of cameras on cell phones giv es millions of Americans the capacity to photograph or record events, thus providing eyewitness accounts. At the same time, social media permit users to upload videos that can be viewed by hundreds of thousands of subscribers or r elayed by the mainstr eam media for ev en wider dissemination.

Citizen journalism supplements the work of professional journalists in many important ways. The diversity of online media has cr eated new opinion leaders and new voices and has ev en, at times, impr oved information. I n recent years, for example, bloggers hav e uncovered major factual err ors in media r eports and forced the networ ks and ne wspapers to issue corr ections. Furthermore, because bloggers and social media users do not have editorial boards, they can post a story

189THe MeD IA TODAy

wtp12e_ess_ptr_ch06_176-203.indd 189 11/28/18 4:29 PM

within minutes. This ability to scoop the mainstream media means bloggers can frame stories about political candidates befor e those stories br eak in the main - stream media.34 By sharply lowering the technological and financial barriers that previously prevented all but a few individuals from reaching mass audiences, blogs increase the ability of ordinary people to engage in effective political action. On the other hand, the freewheeling nature of blogging and social media often means that there is no quality control like that employed by professional journalists and traditional media.35

CONCERNS ABOUT ONLINE NEWS

While online news holds significant promise for improving access to political infor- mation, the shift toward online media has also given rise to several major concerns. These potential disadvantages include a decline in investigative journalism, uneven quality in news content, and negative effects on knowledge and tolerance. Two pri- mary concerns dominate the debate about online news: fake news, and the impact on tolerance.

Fake News Political candidates and political leaders ar e particularly susceptible to attack when negative stories go viral and spr ead quickly without fact-checking and respect for the privacy of public figures. In contrast to legitimate new stories, fake news are false stories cir culated to generate ad r evenue or to benefit one political candidate or party over another. The most widely publicized fake news story in the 2016 election, the top fake ne ws story circulated on Facebook, was that the P ope had endorsed Trump for pr esident (he did not). Cir culation of the top 10 fake news stories on Facebook was more widespread than circulation of the top real news stories about the election. A study published by Stanford University found fake news stories on social media in the 2016 pr esidential election disproportion- ately favored Trump over Hillary Clinton, and ther e is gr owing evidence that the Russian go vernment was inv olved in generating many of the fake ne ws stories in order to discr edit Clinton and her campaign. Websites such as F actCheck.org, Snopes.com, and PolitiFact.com are devoted exclusively to checking the veracity of political claims.

Knowledge Up, Tolerance Down? The variety of online news may actually lower tolerance for social, religious, and political diversity, leading to more partisan polar- ization and societal conflict. Digital media often do not abide by traditional media’s principle of objective journalism. Instead, the specialization of information online and on cable television means that liberals and conser vatives alike can self-select media that ar e consistent with their underlying assumptions and av oid exposure to information that might challenge their pr econceived beliefs.36 The natural ten- dency to select ne ws that conforms with our o wn beliefs is exacerbated b y the way search engines cater to our individual pr eferences—called the “filter bubble,” or “ self-selection bias ”—which scr eens out exposur e to information that might challenge or broaden our worldview.37

190 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 190 11/28/18 4:29 PM

The Media Affect Power Relations in American Politics

The content and character of news and public affairs programming— what the media choose to pr esent and ho w they pr esent it—can hav e

far-reaching political consequences. The media can shape and modify, if not fully form, the public’s perception of events, issues, and institutions. Media coverage can rally support for, or intensify opposition to, national policies on impor tant matters such as health care, the economy, and international wars.

THE MEDIA INFLUENCE PUBLIC OPINION THROUGH AGENDA-SETTING, FRAMING, AND PRIMING

Traditional and digital media influence American politics in a number of important ways. The power of the media lies in their ability to shape what issues Americans think about (setting the agenda) and what opinions Americans hold about those issues (framing and priming).

Agenda-Setting and Selection Bias The first source of media po wer is agenda- setting—that is, the power of the media to bring public attention to par ticular issues and problems. Groups and forces that wish to bring their ideas before the public in order to generate suppor t for policy pr o- posals or political candidacies must secur e media coverage. If the media are persuaded that an idea is newsworthy, they may declare it an “issue ” that must be confr onted or a “problem” to be solv ed, thus clearing the first hurdle in the policy-making pr ocess. If, on the other hand, an idea lacks or loses media appeal, its chance of r esulting in ne w programs or policies is diminished.

For example, in the lead-up to the 2016 election, the mainstr eam media and Donald Trump focused extensiv ely on Hillary Clinton’s use of a private email server during her tenur e as S ecretary of State, and its possible risk of jeopar dizing government secr ets. Clinton ’s email use dominated the media agenda, especially in the 10 days befor e the election when FBI director James Comey reopened the inves- tigation into her email server.

Through agenda setting, the media have the power to influence which issues the public pays attention to. After FBI director James Comey released a letter indicating the reopening of the investigation into Hillary Clinton’s use of a private email server days before the 2016 election, the media’s intense coverage of the investigation caused the Clinton campaign to respond to the letter publicly.

Analyze the ways the media can influence public opinion and politics

191THe MeD IA AFFeCT POWer relAT IONS IN AMer ICAN POl I T ICS

wtp12e_ess_ptr_ch06_176-203.indd 191 11/28/18 4:29 PM

Because the media ar e businesses and because the media seek to attract the largest possible audiences, they naturally tend to co ver stories with dramatic or entertainment v alue, giving less attention to impor tant stories that ar e less compelling. News coverage thus often focuses on crimes and scandals, especially those involving promi nent individuals. This selection bias—the tendency to focus news coverage on only one aspect of an ev ent or issue, av oiding coverage of other aspects—means that the media may pr ovide less information about impor tant political issues. The age-old journalistic instinct for sensational stories to tell often trumps the media’s responsibility to inform the public about what r eally matters— and the public’s responsibility to demand that from the media.

What the mainstr eam media decide to report on and what they ignore have important implications. For example, the mainstream media provided little coverage of the Bush tax cuts of 2001 and 2003 (or their extension under P resident Obama in 2009), although they dramatically incr eased the federal budget deficit and widened the gap betw een the super-rich and most other Americans in terms of wealth.38 It is not surprising that public-opinion polls showed that 40 percent of Americans had no opinion on whether they favored the massive tax cuts in 2001.

Framing Framing is the media ’s ability to influence how the American people interpret events and policies. Politicians take care to choose language that pr esents their ideas in the most favorable light possible. Public opinion on politics naturally changes with facts, but few citizens read legislation; so when forming opinions about policy and politics, the public relies on media coverage. This means that arguments made by elected officials and other political actors, or “frames,” are critical to the process of forming opinions. For example, during the 2016 pr esidential campaign, Donald Trump framed Hillary Clinton as a criminal for her use of a priv ate email server even though no charges were ever brought.

Priming Another sour ce of media influence on opinion, related to framing, is priming. P riming inv olves “calling attention to some matters while ignoring others.”39 As a r esult, the public will be primed to use cer tain criteria when evaluating a politician or an issue and to ignor e other criteria. In the lead-up to the 2008 presidential election, for example, the serious economic recession took much of the spotlight. As a r esult, the economy—far mor e than other issues— was a mor e impor tant lens thr ough which the public ev aluated the candidates rather than national security.

In the case of political candidates, the media hav e considerable influence over whether a par ticular individual will receive public attention and whether a particular individual will be taken seriously as a viable contender. Thus, if the media find a candidate interesting, they may tr eat him or her as a serious contender despite possible weaknesses and shor tcomings. For example, the media w ere criticized in the 2016 pr esidential race for co vering Donald Trump—a reality TV star kno wn for his inflammatory comments and disdain for political corr ectness—much more than other candidates. M any people believ ed that Trump’s unexpected victor y in the Republican primaries was due in part to widespread media coverage.

192 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 192 11/28/18 4:29 PM

News media ar e not alone in agenda-setting, framing, and priming; elected officials, interest groups, and other political players compete over all three in hopes of influencing public opinion.

LEAKED INFORMATION CAN COME FROM GOVERNMENT OFFICIALS OR INDEPENDENT SOURCES

The media may report information that is leaked b y government officials. A leak is the disclosur e of confidential information to the news media. Leaks may ema - nate fr om a v ariety of sour ces, including whistle-blo wers or lo wer-level officials who hope to publiciz e what they vie w as their bosses ’ impr oper activities. In 1971, for example, a minor D efense D epartment staffer named Daniel Ellsberg sought to discredit official justifications for U.S. involvement in Vietnam by leaking top-secr et documents to the pr ess. The Pentagon Papers—the Defense Department’s own secret histor y of the war , differing widely from the P entagon’s public pronouncements—were published by the New York Times and the Washington Post after the U.S. Supreme Court ruled that the government could not block their release.40 Pentagon credibility was severely damaged, hastening the erosion of public support for the war.

Most leaks, though, originate not with low-level whistle-blowers but rather with senior government officials, prominent politicians, and political activists. These individuals cultiv ate long-term r elationships with journalists, to whom they r eg- ularly leak confidential information, knowing that it is likely to be published on a priority basis in a form acceptable to them. I n turn, of course, journalists are likely to r egard high-lev el sour ces of confidential information as valuable assets whose favor must be retained.

Digital media has taken leaks to a ne w lev el. WikiLeaks, an independent nonprofit organization dedicated to publishing classified information, posts leaked documents to its w ebsite and uses an anonymous system so that leak - ers cannot be identified. In r ecent y ears, WikiLeaks has r eleased thousands of secret go vernment documents inv olving instances of go vernment corr uption, such as war crimes in Afghanistan and Iraq. During the 2016 presidential campaign, WikiLeaks r eleased thousands of stolen emails fr om D emocratic candidate H illary Clinton ’s campaign. WikiLeaks shar es its tr easure tr ove of leaked government documents with major international papers, including the New York Times.

In 2013, Edward Snowden, a former employee of the Central Intelligence Agency (CIA) and contractor for the N ational S ecurity Agency (NSA), dis - closed thousands of classified digital documents to journalists and international media. The leaks disclosed widespread global sur veillance pr ograms b y the U.S. go vernment wor king with telecommunication companies. The world learned the NSA was searching millions of email and instant messaging con- tact lists and tracking and mapping the locations of cell phones. F or revealing the mass surveillance programs, Snowden has been called a hero, a whistle-blower, a dissident, and a traitor . The leaks garnered intense media attention and

193THe MeD IA AFFeCT POWer relAT IONS IN AMer ICAN POl I T ICS

wtp12e_ess_ptr_ch06_176-203.indd 193 11/28/18 4:29 PM

sparked heated public debate o ver government surveillance and priv acy of information for individuals.

Critics of WikiLeaks and S nowden argue that posting go vernment documents online is not journalism, that go vernments must hav e some secrets, and that the r elease of some go v- ernment documents may jeopardize national security as w ell as American soldiers and their local allies by revealing their identities.

ADVERSARIAL JOURNALISM HAS RISEN IN RECENT YEARS

The political power of the news media vis-à-vis the government has gr eatly increased in r ecent years thr ough the gr owing pr ominence of “adversarial journalism,” an aggr essive form of investigative journalism that attempts to expose and antagonize the status quo.

The national media’s aggr essive use of the techniques of inv estigation, publicity , and exposure allo w them to inform the public about major news stories. Without such aggres- sive media co verage, w e might nev er hav e known of B ill Clinton’s extramarital affair or of Richard Nixon’s Committee to R e-elect the President’s illegal br eak-in to the D emocratic Party headquarters in the Watergate building. We might never have known that Iraq did

not hav e w eapons of mass destr uction, despite claims to the contrar y b y then- president George W. Bush. Without aggressive media co verage, would w e know about Russian interference in the 2016 elections? I t is easy to criticiz e the media for their aggressive tactics, but would our democracy function effectively without the critical role of the press? Independent media are needed as the watchdogs of American politics. D igital technology has pr ovided a ne w means b y which the media can be watchdogs.

BROADCAST MEDIA ARE REGULATED, BUT NOT PRINT MEDIA

In many countries, such as China, the go vernment contr ols media content. I n other countries, the government owns the broadcast media (for example, the BBC in Britain) but does not tell the media what to say.

In the United States, the print media are essentially free from government inter- ference. The broadcast media, on the other hand, ar e subject to federal r egula- tion. American radio and television ar e regulated by the Federal Communications

Leaks of classified information have sparked significant debate over what the government should classify as “secret” and what deserves to be public knowledge. After Edward Snowden leaked thousands of classified doc- uments, he fled the United States in order to escape arrest and prosecution. His actions have been both defended and denounced.

194 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 194 11/28/18 4:29 PM

Commission (FCC), an independent regulatory agency established in 1934. Radio and TV stations must have FCC licenses, which must be r enewed every five years. Licensing provides a mechanism for allocating radio and TV frequencies to prevent broadcasts from interfering with and garbling one another.

Through regulations prohibiting obscenity, indecency, and pr ofanity, the FCC has also sought to pr ohibit radio and television stations fr om airing explicit sexual and excretory references between 6 a.m. and 10 p.m., the hours when childr en are most likely to be in the audience. Generally speaking, FCC regulation applies only to the “over-the-air” broadcast media. It does not apply to cable television, the inter- net, or satellite radio.

In 1996, Congress passed the Telecommunications Act, a broad effort to do away with most regulations in effect since 1934. The legislation loosened restrictions on media ownership and allowed telephone companies, cable television providers, and broadcasters to compete with one another for telecommunication ser vices. Follow- ing the passage of the act, sev eral mergers between telephone and cable companies and among different segments of the entertainment media produced an even greater concentration of media o wnership than had been possible since r egulation of the industry began in 1934.

Though the act loosened many regulations, it did include an attempt to r egu- late the content of material transmitted o ver the internet. This law, known as the Communications Decency Act, made it illegal to make “indecent ” sexual material on the internet accessible to those under 18 y ears old. The act was immediately denounced by civil libertarians and became the subject of lawsuits. The case reached

The debate over net neutrality highlights fundamental questions about democracy. If the media are intended to be a marketplace of ideas, what should the government do to regulate that marketplace? Should any single entity be allowed to exert more influence or control, or should everyone be allowed to participate equally?

wtp12e_ess_ptr_ch06_176-203.indd 195 11/28/18 4:29 PM

The Internet and Global Democracy The internet and social media play an increasing role in elections, as demonstrated in this chapter. Critics of this trend have raised concerns that a lack of “quality control” allows the spreading of fake news by unscrupulous groups.a A number of foreign and domestic actors have used the open nature of this media to manipulate campaign rhetoric for political gain. The British government opened investigations into the spread of false news during the “Brexit” vote on leaving the european Union,b and russia used internal techniques to manipulate elections in the United States and europe.c

Supporters, however, point out that the internet and social media have allowed voters to connect better with their political systems. In Kenya, biometric voter registra- tion has made it more difficult for people to cast multiple ballots, and real-time texting has improved oversight on election counts, helping to combat voter fraud.d

While internet and social media are certainly transforming politics, it is important to remember that not all global citizens are part of this trend. If the future of politics is online, then many poor and older people around the world may be increasingly left behind.

SOURCE: World Bank, “Individuals Using the Internet (% of Population),” 2016, data.worldbank.org (accessed 5/21/18).

INTERNET USAGE THROUGHOUT THE WORLD

Under 33% 33–66% Over 66%

a Thomas B. Edsall, “Opinion: Democracy, Disrupted,” March 2, 2017, New York Times, www.nytimes.com/2017/03/02/ opinion/how-the-internet-threatens-democracy.html (accessed 5/21/18). b “What Are the Links between Cambridge Analytica and a Brexit Campaign Group?” Reuters, March 21, 2018, www.reuters .com/article/us-facebook-cambridge-analytica-leave-eu/what-are-the-links-between-cambridge-analytica-and-a-brexit -campaign-group-idUSKBN1GX2IO (accessed 5/21/18). c Constanze Stelzenmüller, “Testimony: The Impact of Russian Interference on Germany’s 2017 Election,” June 28, 2017, www.brookings.edu/testimonies/the-impact-of-russian-interference-on-germanys-2017-elections/ (accessed 5/21/18). d Loren Treisman, “How Kenyans Are Using Tech to Stop Election Fraud,” August 3, 2017, CNN, www.cnn.com/2017/07/27/ africa/kenya-elections-technology/index.html (accessed 5/21/18).

wtp12e_ess_ptr_ch06_176-203.indd 196 11/28/18 4:29 PM

the Supreme Court in 1997, and the act was ruled an unconstitutional infringement of the First Amendment’s right to freedom of speech (see Chapter 4).

Although the go vernment’s ability to r egulate the content of electr onic media on the internet has been questioned, the federal go vernment has used its licensing power to impose several regulations that can affect the political content of radio and TV broadcasts. The first of these is the equal time rule, under which broadcasters must provide candidates for the same political office equal opportunities to communicate their messages to the public. Under the terms of the Telecommunications Act, dur- ing the 45 days before an election, broadcasters are required to make time available to candidates at the lowest rate charged for that time slot.

The second regulation affecting the content of broadcasts is the right of rebuttal, which requires that individuals be giv en the opportunity to r espond to personal attacks made on a radio or television broadcast. In the 1969 case of Red Lion Broad- casting Company v . F ederal Communications Commission , for example, the U.S. Supreme Court upheld the FCC’s determination that a radio station was r equired to provide a liberal author with an opportunity to respond to a conservative com- mentator’s attack that the station had aired.41

For many y ears, a thir d impor tant federal r egulation was the fairness doctrine . Under this doctrine, br oadcasters who aired programs on controversial issues were required to provide time for opposing vie ws. In 1987, however, the FCC r evoked the fairness doctrine on the gr ounds that ther e were so many radio and television stations—to say nothing of ne wspapers and newsmagazines—that in all likelihood many different viewpoints were already being presented without each station’s being required to try to present all sides of an argument.

The rise of online media challenges our thinking about regulation of the media as it is more difficult—some say impossible—to regulate political content online. I n 2011 the United Nations declared that access to the internet is a human right. 42 While this came in response to threats by authoritarian governments against internet access, the UN’s position demonstrates the significance of information technology in modern life.

The Media WHAT DO WE WANT? The freedom of the press is essential to democratic government. Ordinary citizens

depend on the media to investigate wrongdoing, publicize and explain governmen-

tal policy, evaluate politicians, and bring to light matters that might otherwise be

known to only a handful of governmental insiders. In short, without free and active

media, democratic government would be virtually impossible. Citizens would have few

means through which to know or assess the government’s actions—other than the

claims or pronouncements of the government itself. Moreover, without active (indeed,

aggressive) media, citizens would be hard-pressed to make informed choices among

197THe MeD IA : WHAT DO We WANT?

wtp12e_ess_ptr_ch06_176-203.indd 197 11/28/18 4:29 PM

competing candidates at the polls. That is one reason that the teenaged defenders of

net neutrality we discussed at the beginning of the chapter hoped to keep the internet

open as a source of information on public affairs.

Today’s media are not only adversarial but also increasingly partisan. Blogs, digital-

only news websites, social media, and others can be unabashedly partisan. To some

extent, increasing ideological and partisan stridency is an inevitable result of the

expansion and proliferation of news sources. When the news was dominated by

three networks and a handful of national papers, each sought to appeal to the entire

national audience. This required a moderate and balanced tone so that consumers

would not be offended and transfer their attention to a rival network or newspaper.

Today, there are so many news sources that few can aim for a broad-based national

audience. Instead, many target a partisan or ideological niche and aim to develop

a strong relationship with consumers in that audience segment by catering to their

biases and predispositions.

The rise of digital media has fundamentally changed how political information is

gathered and distributed. News today is participatory and involves citizens as well as

professional journalists. Wikipedia, the free online encyclopedia founded by Jimmy

Wales, has millions of pages compiled by legions of volunteers and provides relatively

unbiased content on virtually every political topic imaginable. Social media, Wikipedia,

and all Wiki-type sites involve people working collaboratively to write and create infor-

mation and transmit knowledge. Social media also enable citizens to express their

political opinions. (The “Who Participates?” feature on the facing page shows some

of the ways Americans participate in politics via social media.) Is such a system the

future of the news media?

The media can make or break reputations, help to launch or destroy political

careers, and build support for or rally opposition to programs and institutions.43 Wher-

ever there is so much power, at least the potential exists for its abuse or overly zealous

use. All things considered, free media are so critically important to the maintenance of

a democratic society that Americans must be prepared to take the risk that the media

will occasionally abuse their power. Governmental controls that would prevent the

media from misusing their power would also limit freedom. The ultimate beneficiaries

of free and active media are the American people.

198 CHAPTER 6 THe MeD IA

wtp12e_ess_ptr_ch06_176-203.indd 198 11/28/18 4:29 PM

WHO PARTICIPATES?

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

Civic Engagement in the Digital Age

SOURCE: American National Election Study 2016 time series, www.electionstudies.org (accessed 11/4/17).

In the last 12 months, did you send a message on Facebook or Twitter about political issues?

Age

18–29

30–49

50–64

65+

43%

42% 30%

18%

Income group

<$20K

$20K – <$40K

$40K – <$75K

$75K+

34%

32% 35%

34%

Partisanship

Democrats

Republicans

Independents

36% 33%

31%

Sex

Male

Female

30% 36%

Education

< High school

Some college

College graduate

Postgraduate

20%

37% 25%

18%

Race / ethnicity

White

Black

Asian

Hispanic /Latino

34%

28% 25%

32%

Percentage who said “yes” to this question

wtp12e_ess_ptr_ch06_176-203.indd 199 11/28/18 4:29 PM

Practice Quiz

1. Public broadcasting outlets that receive government funding through license fees, subsidies, or tax dollars (p. 180) a) are prohibited by the Constitution

from operating in the United States. b) account for less than 5 percent of

media market share in the United States.

c) account for nearly one-third of media market share in the United States.

d) account for approximately half of media market share in the United States.

e) account for more than two-thirds of media market share in the United States.

2. More than three-fourths of daily print newspapers are owned by (p. 181) a) large media conglomerates. b) the national government. c) small local companies. d) private individuals. e) the employees who run them.

3. Digital citizenship requires (p. 188) a) a subscription to one or more online

newspapers. b) high-speed internet access and the

technical and literacy skills to eval- uate and use information online.

c) high-speed internet access only. d) a social media account, such as

Facebook or Twitter. e) maintaining a political blog.

Be an Informed Consumer of Media

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

Gather information from a variety of news sources rather than relying on just one. You can set up a news aggregator with a variety of free downloadable apps, including Flipboard (www.�ipboard.com) and Feedly (www.feedly.com).

Check media watchdog organizations such as the Columbia Journalism Review (www.cjr.org), Fairness & Accuracy in Reporting (www.fair.org), and Accuracy in Media (www.aim.org) for reports of media bias and censorship.

For information on the factual accuracy of what is said by political players, go to www.factcheck.org. For investigative journalism in the public interest, go to www.propublica.org. For reporting on the accuracy of news rumors, go to www.snopes.com.

200 STUDy GU IDe

wtp12e_ess_ptr_ch06_176-203.indd 200 11/28/18 4:29 PM

4. The fact that almost 90 percent of college graduates have home broad- band access but only 63 percent of high school graduates do is an example of (p. 188) a) the “college chasm.” b) the “online opening.” c) the “download disparity.” d) the “digital divide.” e) the “BA bump.”

5. Which of the following is not a reason that many Americans appear to prefer online news? (p. 190) a) the depth of the information

available online b) the diversity of online viewpoints c) the convenience of getting news

online d) the accuracy and objectivity com-

pared to traditional media outlets e) the up-to-the-minute currency of

the information available online

6. Media’s powers to bring public attention to a particular issue or problem is known as (p. 191) a) agenda-setting. b) framing. c) priming. d) adversarial journalism. e) selection bias.

7. Most leaks originate with (p. 191) a) low-level government whistle-

blowers. b) senior government officials, promi-

nent politicians, and political activists. c) members of the public who witness

misbehavior. d) ambassadors from foreign countries. e) members of the media.

8. Adversarial journalism refers to (p. 194) a) the recent shift in American society

away from general-purpose sources of information and toward narrowly focused niche sources.

b) an era in American history when political parties provided all of the financing for newspapers.

c) an aggressive form of journalism that attempts to expose and antag- onize the status quo.

d) a form of reporting in which the media adopt an accepting and friendly posture toward the government and public officials.

e) the process of preparing the public to take a particular view of an event or political actor.

9. In general, FCC regulations apply only to (p. 195) a) cable television. b) internet websites. c) over-the-air broadcast media. d) satellite radio. e) newspapers and magazines.

10. In Red Lion Broadcasting Company v. Federal Communications Commission, the Supreme Court ruled that a radio station (p. 197) a) could not legally charge Democratic

and republican gubernatorial candi- dates different prices for commer- cials aired at the same time of day.

b) could legally charge Democratic and republican gubernatorial candi- dates different prices for commer- cials aired at the same time of day.

c) was required to provide a liberal author with an opportunity to respond to a personal attack broadcast by one of the station’s conservative commentators.

d) was not required to provide a liberal author with an opportunity to respond to a personal attack broadcast by one of the station’s conservative commentators.

e) was not required to secure a license from the FCC if it accepted no money in grants or tax credits from the federal government.

11. The now-defunct requirement that broadcasters provide time for oppos- ing views when they air programs on controversial issues was called (p. 197) a) the equal time rule. b) the fairness doctrine. c) the right of rebuttal. d) the response rule. e) the free speech doctrine.

201STUDy GU IDe

wtp12e_ess_ptr_ch06_176-203.indd 201 11/28/18 4:29 PM

Key Terms

agenda-setting (p. 191) the power of the media to bring public attention to particular issues and problems

broadcast media (p. 183) television, radio, or other media that transmit audio and/or video content to the public

citizen journalism (p. 189) news reported and distributed by citizens, rather than by professional journalists and for-profit news organizations

digital citizen (p. 188) a daily internet user with high-speed home internet access and the technology and literacy skills to go online for employment, news, politics, entertainment, commerce, and other activities

digital divide (p. 188) the gap in access to the internet among demographic groups based on education, income, age, geo- graphic location, and race/ethnicity

equal time rule (p. 197) the requirement that broadcasters provide candidates for the same political office equal opportu- nities to communicate their messages to the public

framing (p. 192) the power of the media to influence how events and issues are interpreted

media (p. 179) print and digital forms of communication, including television, news- papers, radio, and the internet, intended to convey information to large audiences

news aggregator (p. 186) an application or feed that collects web content such as

news headlines, blogs, podcasts, online videos, and more in one location for easy viewing

niche journalism (p. 188) news reporting devoted to a targeted portion (subset) of a journalism market sector or for a portion of readers or viewers based on content or ideological presentation

penny press (p. 186) cheap, tabloid-style newspaper produced in the nineteenth cen- tury, when mass production of inexpensive newspapers first became possible due to the steam-powered printing press; a penny press newspaper cost one cent compared with other papers, which cost more than five cents

priming (p. 192) process of preparing the public to take a particular view of an event or political actor

right of rebuttal (p. 197) a Federal Com- munications Commission regulation giving individuals the right to have the opportunity to respond to personal attacks made on a radio or television broadcast

selection bias (p. 192) the tendency to focus news coverage on only one aspect of an event or issue, avoiding coverage of other aspects

social media (p. 188) web-based and mobile-based technologies that are used to turn communication into interactive dialogue between organizations, communi- ties, and individuals; social media technolo- gies take on many different forms including blogs, Wikis, podcasts, pictures, video, Facebook, and Twitter

202 STUDy GU IDe

wtp12e_ess_ptr_ch06_176-203.indd 202 11/28/18 4:29 PM

Boydstun, Amber e. Making the News: Politics, the Media, and Agenda Setting. Chicago: University of Chicago Press, 2013.

Campbell, richard, Christopher Martin, and Bettina Fabos. Media and Culture. New york: St. Martin’s Press, 2009.

Carr, Nicholas. The Shallows: What the Internet Is Doing to Our Brains. New york: W. W. Norton, 2011.

Fenton, Tom. Bad News: The Decline of Reporting, the Business of News, and the Danger to Us All. New york: HarperCollins, 2005.

Fox, richard, and Jennifer ramos. iPolitics: Citizens, Elections and Governing in the New Media Era. New york: Cambridge University Press, 2011.

Graber, Doris, and Johanna Dunaway. Mass Media and American Politics, 9th ed. Washington, DC: CQ Press, 2014.

Iyengar, Shanto. Media Politics: A Citizen’s Guide, 3rd ed. New york: W. W. Norton, 2015.

Iyengar, Shanto, and Donald Kinder. News That Matters: Television and American Public Opinion. Chicago: University of Chicago Press, 2010.

Jenkins, Henry. Convergence Culture: Where Old and New Media Collide. New york: New york University Press, 2008.

MacArthur, John. Second Front: Censorship and Propaganda in the 1991 Gulf War. Berkeley and los Angeles: University of California Press, 2004.

Spitzer, robert J., ed. Media and Public Policy. Westport, CT: Praeger, 1993.

West, Darrell M. Air Wars: Television Advertising and Social Media in Election Campaigns, 1952–2016, 7th ed. Washington, DC: CQ Press, 2017.

For Further Reading

203STUDy GU IDe

wtp12e_ess_ptr_ch06_176-203.indd 203 11/28/18 4:29 PM

070707 chapter

Political Parties, Participation, and Elections WHAT GOVERNMENT DOES AND WHY IT MATTERS Political parties play a variety of important roles in American democracy. They

mobilize people to participate in the political arena and to vote. They convey

information about what policies candidates support. And they are broader than

interest groups, which generally seek narrow policy objectives. Political parties

are capable of mobilizing many more voters to win control of government.

For all their important mobilizing and information conveying functions,

parties, like other aspects of government and politics, can seem far from

ordinary people. But ordinary people can have a big impact in political parties.

Early in 2009, before the term “Tea Party” was coined, Keli Carender was a

conservative blogger in Seattle. She became concerned that the stimulus

bill that Congress was considering to address the financial crisis and ensu-

ing recession was simply more of “big government” trampling on her “free-

dom and liberty.” After calls and emails to her congressional representative

were ignored, she organized a “Porkulus Protest” in Seattle without support

from any national organization. “I just got fed up and planned it. . . . I had

wtp12e_ess_ptr_ch07_204-245.indd 204 11/28/18 5:55 PM

Individuals can have profound effects on political parties. Keli Carender took her belief in limited government and her anger over excessive government spending and started the Tea Party movement, which has strongly influenced the direction of the Republican Party.

Political Parties, Participation, and Elections

205

120 people show up, which is amazing for the bluest of blue cities I live in,

and on only four days’ notice!! This was due to me spending the entire four

days calling and emailing every person, think tank, policy center, university

professors (that were sympathetic), etc. in town, and not stopping until

the day came.” She also contacted conservative author Michelle Malkin, who

publicized the rally on her blog. At a second rally later that month, twice

as many people showed up, in part because Carender had collected email

addresses at the first rally. Her advice to other would-be organizers: “Num-

ber one: just get it done. Do you need a permit? Find out and then just get

it. Do you want a guest speaker? Get on the phone and call anyone you can

think of and get them there. You will need to alert the media, so just get that

done. . . . Let people help you. Almost immediately I had two women email me

and say, what can I do? And boom, I had two other organizers to start helping

me with the next event.”1

Carender’s protests were among the first events in what became known as

the Tea Party movement, which gained steam when CNBC business analyst

wtp12e_ess_ptr_ch07_204-245.indd 205 11/28/18 5:55 PM

★ Explain the roles that parties play in American elections and government (pp. 207–10)

★ Describe the American party system and how it has changed over time (pp. 210–20)

★ Describe the major forms of traditional and digital participation in politics (pp. 220–27)

★ Examine the factors that influence voters’ decisions (pp. 227–29)

★ Explain the major rules, levels, and types of elections in the United States (pp. 229–32)

★ Analyze the strategies, issues, and outcomes of the 2016 and 2018 elections (pp. 232–36)

★ Describe how candidates raise the money they need to run (pp. 237–39)

CHAPTER GOALS

Rick Santelli called for a “tea party” protest of the Obama administration’s

plans for addressing the Great Recession. Many political candidates associ-

ated with the Tea Party gained office beginning in the 2010 midterm elections,

and Donald Trump courted Tea Party supporters during his presidential cam-

paign in 2016. As we will see in this chapter, political parties and elections

are all about who controls the government; participation is about who gets

involved and why. Revolts against the political parties by rank-and-file mem-

bers occur very rarely in American history. But sometimes, parties are shaken

up by grassroots activity like Keli Carender’s. Her story, and others like it,

show that individuals can make a difference if they participate. The key is to

“just get it done.”

206 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 206 11/28/18 5:55 PM

Parties and Elections Have Been Vital to American Politics and Government

Political parties, like interest gr oups (see Chapter 8), ar e organized groups that seek influence over the go vern- ment. A par ty seeks to contr ol the

entire government by electing its members to office. Interest groups, by comparison, don’t control the operation of government and its personnel but rather try to influ- ence government policies, often thr ough lobbying elected officials and campaign contributions.

POLITICAL PARTIES AROSE FROM THE ELECTORAL PROCESS

Although the F ounders did not envision the rise of political par ties and G eorge Washington was elected the nation ’s first president without association with a politi cal party, parties quickly became a cor e feature of the American political sys - tem. Historically, parties form in one of two ways. The first, which could be called “internal mobilization,” occurs when political conflicts prompt officials and compet- ing factions within government to mobilize popular support. This is precisely what happened during the early y ears of the American R epublic. Competition in Con - gress between northeastern merchants and southern farmers led first the southerners and then the northeasterners to attempt to organize their supporters. The result was the foundation of America’s first national parties: the Jeffersonians, or Antifederal- ists, whose primary base was in the S outh, and the Federalists, whose strength was greatest in the New England states.

The second way that parties form is called “ external mobilization,” which takes place when a group of politicians outside government organizes popular support to win governmental power. For example, during the 1850s, a gr oup of state politi - cians who opposed slavery, especially the expansion of slavery in America’s territorial possessions, built what became the Republican Party by constructing party organi- zations and mobilizing popular support in the Northeast and West.

America’s two major par ties no w, of course, ar e the D emocratic P arty and the Republican Party. Both trace their r oots back over 150 years, and both hav e evolved over time. Since they were formed, the two major parties have undergone significant shifts in their policy positions and their membership. These changes have been prompted both by issues and events (economic change, the civil rights movement, immigration, etc.) and b y demographic and social dev elopments in the United States.

Political parties play an impor tant role in elections. They recruit candidates to run for office, get their loyal par ty members out to v ote, and wor k in a v ariety of ways to pr omote the causes and issues of the par ty. In earlier times the par ties had near total contr ol over the electoral pr ocess. In recent decades, ho wever, they

Explain the roles that parties play in American elections and government

207PART IES AND ELECT IONS HAVE BEEN V I TAL TO AMER ICAN POL I T ICS

wtp12e_ess_ptr_ch07_204-245.indd 207 11/28/18 5:55 PM

have lost their monopoly to candidates who decide not to work within the party, to political action committees (PACs) that raise and distribute millions of dollars for candi- dates, and to direct appeals through the media.

PARTIES RECRUIT CANDIDATES

One of the most impor tant party activities is the r ecruitment of candidates to r un for office. Where they do not hav e an incumbent r unning for r e-election, par ty leaders attempt to identify strong candidates and to interest them in entering the campaign.

An ideal candidate will have a strong leadership record and the capacity to raise enough money to mount a serious campaign. Party leaders are usually not willing to provide financial backing to candidates who are unable to raise substantial funds on their own. For a U.S. House seat, this can mean sev eral hundred thousand dollars; for a S enate seat, a serious candidate must be able to raise sev eral million dollars. Presidential candidates raise hundreds of millions of dollars, an amount that conti- nues to rise with every election cycle.

Often, party leaders have difficulty finding attractive candidates and persuad- ing them to r un. Candidate r ecruitment has become par ticularly difficult in an era in which incumbents (candidates running for re-election to positions that they already hold) ar e hard to beat. Ov er 20 per cent of races for the H ouse of Rep- resentatives, for example, ar e uncontested (meaning ther e is only one candidate from one party on the ballot) because challenging incumbents in the House and winning is so difficult. On average, incumbents in the H ouse have more than double the money for their political campaigns than challengers, while S enate incumbents have on average 50 percent more. Other barriers to recruiting qual- ity candidates include lengthy political campaigns that often inv olve mudsling- ing, and the fact that candidates must assume that their personal liv es will be intensely scrutinized on social media, in the press, and in negative campaign ads run by their opponents.2

PARTIES ORGANIZE NOMINATIONS

Nomination is the process by which a party selects a single candidate to run for each elective office. The party nomination process varies from state to state and office to office, but it usually involves a primar y election among multiple candidates from the same party. Voters in the primary election select just one candidate to go on to general election. Scholars have found that although the nomination process appears democratic in that average citizens have a say, party elites play an outsized role in selecting the candidates nominated b y their par ty for pr esident of the United States. In 2016, however, the Republican Party insiders had less control over the process; outsider businessman and reality-TV star Donald Trump secured the nomination despite the fact that many members of the par ty emphatically opposed him.

208 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 208 11/28/18 5:55 PM

PARTIES HELP GET OUT THE VOTE

The formal general election begins immediately after the nominations conclude. Throughout American histor y, the general election competition is a time of heightened partisanship, when popular suppor t for the political par ties is high. All the paraphernalia of par ty committees—fr om signs, bumper stickers, and buttons to social media slogans and YouTube ads—are on display , and all the committee members are activated into local party workforces.

The first step involves voter registration. Party workers collaborate with nonprofit organizations, local community gr oups, and other organizations to turn out the vote. The parties and candidate campaigns still mail notices, call v oters, organize voter-registration drives on college campuses, and knock on doors to ensure citizens are registered.

The next step is turning out the vote: after all, it doesn ’t matter which par ty has more suppor t if that par ty’s voters stay home on E lection Day. Convincing voters to actually sho w up and v ote on E lection Day is one of the har dest tasks that the par ties face, as it usually inv olves getting individuals to go to the polls, stand in line, and vote for the party’s candidates. If they are voting by mail—one in three Americans now vote by absentee ballots or mail v oting—voters still have to request the ballot, fill it out, and return it. Voter mobilization, once an art, has now become a science. R esearch has sho wn that face -to-face, in-person contacts are much more effective than mailings, robocalls, or TV advertising in mobilizing voters. Campaigns no w organiz e large -scale v oter-mobilization driv es and field offices with hundreds of thousands of par ty wor kers and v olunteers contacting millions of v oters. In recent years, par ties have developed extensive databases of

People are more likely to turn out to vote if someone asks them face to face. Direct mail and impersonal phone calls are less likely to have an effect on turnout.

209PART IES AND ELECT IONS HAVE BEEN V I TAL TO AMER ICAN POL I T ICS

wtp12e_ess_ptr_ch07_204-245.indd 209 11/28/18 5:55 PM

over 240 million potential adult v oters. Modern political campaigns can pr edict who you will vote for and are extremely effective at turning out the voters who are most likely to vote for their candidates. One way campaigns use this data is through micro-targeting. Micro-targeting involves tailoring campaign messages to individuals in small, homogenous gr oups (e.g., suburban stay -at-home mothers or fans of NASCAR) and emphasizing specific issues, rather than a one-size-fits-all campaign message. This technique enables political parties to target candidates’ strategies and messages to these very specific groups.

PARTIES ORGANIZE POWER IN CONGRESS

Congress depends more on the par ty system than is generally r ecognized. For one thing, power in Congress is organized along party lines. The speakership of the House is essentially a party office because the Speaker is chosen by the majority party— that is, the party that holds the majority of seats in the House or Senate. (The other party is kno wn as the minority party.) When the majority par ty presents a nominee to the entire House, its choice is usually ratified in a straight vote along party lines.

The committee system of both houses of Congress is also a pr oduct of the two- party system; the par ty with the most seats chairs the congr essional committees, setting the policy agenda. Each par ty is also assigned a quota of members for each committee, depending on the percentage of total seats held by the party. As we will see in Chapter 9, the assignment of individual members to committees is a par ty decision. Granting a member of Congr ess permission to transfer to another com- mittee is also a par ty decision, as is adv ancement up the committee ladder to ward serving as committee chair.

America Is One of the Few Nations with a Two-Party System

In his 1796 F arewell Address, Presi- dent George Washington warned his countrymen to shun par tisan politics. Nonetheless, a two-party system—a political system in which only two

parties hav e a r ealistic oppor tunity to compete effectively for contr ol of the government—emerged early in the histor y of the ne w Republic. Beginning with the Federalists and the Jeffersonian Republicans in the late 1780s, two major parties have dominated national politics, although which par ticular two par ties they have been has changed with the times and issues.

However, the term party system refers to more than just the number of parties competing for power or the set of par ties that ar e important at any giv en time. I t also includes the organization of the par ties, the balance of po wer betw een and within party coalitions, the parties’ social and institutional bases, and the issues and policies around which par ty competition is organiz ed. Seen from this broader

Describe the American party system and how it has changed over time

210 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 210 11/28/18 5:55 PM

perspective, the character of a nation’s party system can change even if the number of parties remains the same and even when the same two parties seem to be competing for power. Today’s American party system is very different from the country’s party system of 100 years ago, but the Democrats and Republicans continue to be the two major competing forces. Over the course of American histor y, changes in political forces and alignments have produced six distinctive party systems (see Figure 7.1).

The First Party System: Federalists and Jeffersonian Republicans The first party system emerged in the 1790s and pitted the Federalists, who favored a strong national government, against the J effersonian Republicans, or Antifederalists, who favored a w eak national go vernment and str ong states. The Federalists w ere the establishment par ty at the time, and the Antifederalists w ere the outsiders. The Federalists represented New England merchants and supported a program of protec- tive tariffs to encourage manufacturing, forgiving states’ Revolutionary War debts, the creation of a national bank, and commercial ties with Britain. The Jeffersonians, led by southern agricultural interests, opposed these policies and instead favored free trade, the promotion of agricultural over commercial interests, and friendship with France. Ov er the y ears the F ederalists gradually w eakened and disappear ed alto - gether, especially after the pro-British sympathies of some Federalist leaders during the War of 1812 led to charges of treason against the party.

From the collapse of the Federalists until the 1830s, America had only one politi- cal par ty, the J effersonian Republicans, who gradually came to be kno wn as the Democrats. This period of one-party politics had an absence of par ty competition. Throughout this period, however, ther e was intense factional conflict within the Democratic Party, par ticularly between the suppor ters and opponents of G eneral Andrew Jackson, America’s great military hero of the War of 1812. Jackson was the first populist president with a wide base of mass support; he sought to give rank- and-file members more say in par ty politics. J ackson’s opponents denied him the presidency in 1824, but Jackson won election in 1828 and again in 1832. Jackson’s base of support was in the South and the West, and he espoused a pr ogram of free trade and other policies that appealed to those r egions. During the 1830s gr oups opposing Jackson united to form a new political force, the Whig Party, thus giving rise to the second American party system.

The Second Party System: Democrats and Whigs Both the D emocrats and the Whigs built par ty organizations thr oughout the nation, and both sought to enlarge their bases of suppor t by expanding the right to v ote. They increased the number of eligible v oters—though only white males—thr ough the elimination of property restrictions and other barriers to v oting. Support for the new Whig Party was stronger in the Northeast than in the South and West and among merchants than among small farmers. Hence, in some measure, the Whigs were the successors of the Federalists. Yet conflict between the two par ties revolved more around per- sonalities than policies. The Whigs were a diverse group, united more by opposition to the D emocrats than b y agreement on pr ograms. In 1840 the Whigs won their first presidential election by nominating a militar y hero, General William Henry

211AMER ICA IS ONE OF THE FEw NAT IONS w ITH A TwO -PARTY SYSTEM

wtp12e_ess_ptr_ch07_204-245.indd 211 11/28/18 5:55 PM

FIGURE 7.1

How the Party System Evolved During the nineteenth century, the Democrats and the Republicans emerged as the two dominant parties in American politics. As the American party system evolved, many third parties emerged, but few of them remained in existence for very long.

*Or in some cases, fourth parties; most of these parties lasted through only one term. **The Anti-Masonics had the distinction of being not only the first third party but also the first party to hold a national nominating convention and the first to announce a party platform.

1788 1790 1804 1808 1812 1816 1820 1824 1828 1832 1836 1840 1844 1848 1852 1856 1860 1864 1868 1872 1876 1880 1884 1888 1892 1896 1900 1904 1908 1912 1916 1920 1924 1928 1932 1936 1940 1944 1948 1952 1956 1960 1964 1968 1972 1976 1980 1984 1988 1992 1996 2000 2004 2008 2012 2016 2018

Jeffersonian Republicans (Democratic- Republicans)

Republicans

Federalists

Democrats National

Republicans

Whigs

Prohibition

Populist

Socialist

Wallace’s American

Independent

Nader’s

National Unity Anderson’s

States’ Rights (Dixiecrats)

Anti-Masonic**

Liberty

Free Soil

Greenback Labor

Union Labor

American Constitutional

Union

Theodore Roosevelt’s Progressive (Bull Moose)

Progressive Party

Perot’s United We Stand

America

Green Party Reform Party

Independent Party

Third Parties* and

Independents

212 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 212 11/28/18 5:55 PM

Harrison. The Whig campaign carefully avoided issues—since the party could agree on almost none—and emphasiz ed the personal qualities and her oism of the can - didate. The Whigs also invested heavily in campaign rallies and entertainment to win over voters. The 1840 campaign came to be called the “hard cider” campaign because of the practice of using food and especially drink to win votes.

During the late 1840s and early 1850s, conflicts over slav ery produced sharp divisions within both the Whig and the D emocratic par ties. By 1856 the Whig Party had all but disintegrated under the strain, and many Whig politicians and voters, along with antislav ery Democrats, joined the ne w Republican Party, which pledged to ban slavery from the western territories. In 1860 the Republicans nomi- nated Abraham Lincoln for the presidency. Lincoln’s victory strengthened southern calls for secession from the Union and, soon thereafter, for all-out civil war.

The Civil War and Post–Civil War Party System: Republicans and Democrats During the course of the war , President Lincoln depended heavily on R epubli- can governors and state legislatures to raise troops, provide funding, and maintain popular support for a long and bloody military conflict. The secession of the South had stripped the D emocratic Party of many of its leaders and suppor ters, but the Democrats remained politically competitiv e throughout the war and nearly won the 1864 presidential election against Republican Lincoln because of northern war weariness. With the defeat of the Confederacy in 1865, some R epublicans sought to use R econstruction to grant the v ote to ne wly fr eed slaves in or der to cr eate a large pr o-Republican v oting bloc. This Reconstruction pr ogram failed in par t because of violent resistance by southern whites. With the end of Reconstruction, the former Confederate states r egained full membership in the U nion and full control of their internal affairs. Throughout the S outh, African Americans w ere deprived of har d-won political rights, including the right to v ote, despite post– Civil War constitutional guarantees to the contrary. The post–Civil War South was solidly Democratic in its political affiliation because of its resentment of Lincoln’s Republican Party, and with a firm southern base, the national Democratic Party was able to confr ont the R epublicans on a mor e or less equal basis. F rom the end of the Civil War to the 1890s, the Republican Party remained the party of the North, with str ong business and middle -class suppor t, while the D emocrats were the par ty of the S outh, with suppor t also fr om northern working-class and immigrant groups.

The System of 1896: Republicans and Democrats During the 1890s profound and rapid social and economic changes led to the emergence of a v ariety of pr o- test parties, including the Populist Party, which appealed mainly to small farmers, western mining interests, and urban workers. In the 1892 presidential election, the Populist Party carried four states and elected governors in eight. In 1896 the Popu- list Party effectively merged with the Democrats, who nominated William Jennings Bryan, a D emocratic senator with pr onounced Populist sympathies, for the pr esi- dency. The Republicans nominated the conservative senator William McKinley. In the ensuing campaign, northern and midwestern businesses made an all -out effort

213AMER ICA IS ONE OF THE FEw NAT IONS w ITH A TwO -PARTY SYSTEM

wtp12e_ess_ptr_ch07_204-245.indd 213 11/28/18 5:55 PM

to defeat what they saw as a radical thr eat from the Populist–Democratic alliance. By the time the dust settled, the R epublicans had won a r esounding victory and confined the Democrats to their smaller bases of support in the South and far West. For the next 36 years, the Republican Party was the nation’s majority party, carrying seven of nine pr esidential elections and contr olling both houses of Congr ess in 15 of 18 contests. The Republican Party was pro business, advocating low taxes, high tariffs on imports, and a minimum of government regulation.

The New Deal Party System: Reversal of Fortune Soon after the Republican presidential candidate H erbert H oover won the 1928 pr esidential election, the nation’s economy collapsed. The Great Depression, which produced unprecedented

Following the Civil War, the Republican Party remained dominant in the North. This poster supporting Republican Benjamin Harrison in the 1888 election promises protective tariffs and other policies that appealed to the industrial states in the North.

214 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 214 11/28/18 5:55 PM

economic har dship, stemmed fr om many causes; but fr om the perspectiv e of millions of Americans, the Republican Party did not do enough to promote eco- nomic recovery. In 1932, Americans elected Franklin Delano Roosevelt (FDR) and a solidly D emocratic Congress. FDR dev eloped a pr ogram for economic r ecov- ery that he dubbed the “New Deal,” under which the size and reach of America’s national government increased substantially. The federal government took respon- sibility for economic management and social welfare to an extent that was unprece- dented in American histor y. FDR designed many of his pr ograms specifically to expand the political base of the D emocratic Party. He rebuilt and r evitalized the party around a nucleus of unionized workers, upper-middle-class intellectuals and professionals, southern farmers, Jews, Catholics, and African Americans—the so-called New Deal coalition that made the Democrats the nation’s majority party for the next 36 years. Groping for a response to the New Deal, Republicans often wound up supporting popular New Deal programs such as Social Security in what was sometimes derided as “ me-too” Republicanism. Even the r elatively conserva- tive administration of Dwight D. E isenhower in the 1950s left the principal N ew Deal programs intact.

The New Deal coalition was severely strained during the 1960s by conflicts over civil rights and the Vietnam War. The struggle over civil rights divided nor thern Democrats who suppor ted the civil rights cause fr om white southern D emocrats who defended the system of racial segr egation. The struggle over the Vietnam War further divided the Democrats, with upper -income liberal D emocrats str ongly opposing the J ohnson administration’s decision to gr eatly expand the numbers of U.S. troops fighting in Southeast Asia. These schisms provided an opportunity for the Republicans’ “Grand Old Party,” or GOP, which r eturned to po wer in 1968 under the leadership of Richard Nixon.

The Contemporary American Party System Although the number of Americans identifying as D emocrats remained higher than those identifying as R epublicans in the 1960s and ’70s, the Republican Party widened its appeal in the second half of the tw entieth century (see Figure 7.2). In 1964, for example, the conser vative Republican pr esidential candidate B arry G oldwater argued in fav or of substan - tially reduced levels of taxation and spending, less go vernment regulation of the economy, and the elimination of many federal social programs. Though Goldwater was defeated by Lyndon Johnson, his ideas continued to be major themes for the Republican Party. It took Richard Nixon’s “southern strategy” to give the GOP the votes it needed to end Democratic control of national politics. Nixon appealed to disaffected white southerners, and with the help of the independent candidate and former Alabama governor George Wallace, he sparked the shift of voters that gave the Republican Party a strong position in all the states of the former Confederacy. During the 1980s, under the leadership of P resident Ronald Reagan, Republicans added two impor tant gr oups to their coalition. The first were r eligious conser - vatives, who w ere offended by D emocratic suppor t for abor tion and gay rights and who felt the D emocrats were not protecting traditional cultural and r eligious values. The second were working-class whites, who were drawn to Reagan’s tough

215AMER ICA IS ONE OF THE FEw NAT IONS w ITH A TwO -PARTY SYSTEM

wtp12e_ess_ptr_ch07_204-245.indd 215 11/28/18 5:55 PM

approach to for eign policy and his positions against affirmative action. M any Republicans consider Reagan’s tenure in office as a “golden era” that saw deregula- tion of many industries, r educed government inter vention in the economy , and strong economic growth.

While Republicans built a political base ar ound economic and social conser va- tives and white southerners, the Democrats appealed strongly to Americans con- cerned with inequality, abortion rights, gay rights, women’s rights, the environment, and other progressive social causes.

In 2008, D emocrats won the pr esidency and maintained contr ol of Congr ess for the first time since 1995. Democrat Barack Obama, the nation’s first African American president, united racial and ethnic minorities, the y outh, and liberals with older white moderates in a po werful national coalition, winning popular

FIGURE 7.2

Trends in Party Identification, 1970–2017 Over time, the Democrats have lost strength as more Americans identified themselves as Republicans and independents. Since 2004, however, the number of Democrats has held steady and the number of Republicans has declined, while the number of Americans identifying as independent of either party has increased to an all-time high. Why do you think this is?

SOURCE: Pew Research Center, “Party Identification,” March 20, 2018, www.people-press.org/2018/03/20/party- identification-trends-1992-2017/ (accessed 5/15/18).

PERCENTAGE IDENTIFYING THEMSELVES AS . . .

0

10

20

30

40

50%

1970 1976 1982 1988 1994 2000 2006 2012 2018

Republican

Democrat

Independent

216 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 216 11/28/18 5:55 PM

majorities in the 2008 and 2012 elections. Democrats lost control of the House in 2010, however, and the S enate in 2014. And in 2016 R epublicans retained both chambers and Donald Trump captured the presidency in a tight race, signaling that sharp partisan differences and intense party conflict would continue to characterize American politics.

PARTIES HAVE INTERNAL DISAGREEMENTS

While par ty polarization, or the depth of divisions betw een R epublicans and Demo crats, is at an all -time high, the divisions within each political par ty may be nearly as impor tant. Political par ties ar e div erse and r epresent many people with competing interests for power and influence. For leaders in Congress and state legislatures, keeping these different groups working toward shared goals can be difficult. And when this effort is not successful, a party’s internal divisions can weaken it.

The Republican Party today is divided in four ways. P ro-business conservatives are traditional Republicans, generally a relatively affluent group that supports small government and lo wer corporate tax es but also fav ors global fr ee trade. Far-right conservatives tend to be social conservatives who are opposed to immigration and U.S. involvement in the global economy and institutions like the United Nations. Religious conservatives are primarily driven by their socially conservative values, such as opposition to abor tion and gay marriage. F inally, liber tarians believ e in small government and reduced government regulations, and emphasize individual freedom.

The 2016 presidential election also revealed serious divides within the D emo- cratic Party between its liberal wing (whose members suppor ted Bernie Sanders) and traditional Democrats, who supported Hillary Clinton and who tend to be older and hold a mix of moderate and liberal v alues. S uch divisions within the Party may hav e contributed to the D emocrats losing the White House and Congress in 2016.

ELECTORAL REALIGNMENTS DEFINE PARTY SYSTEMS IN AMERICAN HISTORY

Transitions betw een par ty systems in American histor y ar e sometimes called electoral realignments, the points in history when a new party replaces the ruling party, becoming in turn the dominant political force. During these periods, the coalitions that support the parties and the balance of power between the parties are redefined. In historical terms, realignments occur when new issues, combined with economic or political crises, mobilize new voters and persuade large numbers of voters to per- manently shift their support from one party to another.

There is general agreement that five realignments have occurred since the Founding. The first took place around 1790–1800, when the J effersonian Republicans defeated the Federalists and became dominant. The second realignment occurred in about 1828, when the Jacksonian Democrats took control of the White House and the Congr ess.

217AMER ICA IS ONE OF THE FEw NAT IONS w ITH A TwO -PARTY SYSTEM

wtp12e_ess_ptr_ch07_204-245.indd 217 11/28/18 5:55 PM

In the third period of realignment, centered on the 1860 election, the ne wly founded Republican Party, led by Abraham Lincoln, won power and in the process destroyed the Whig Party. Many northern voters who had suppor ted the Whigs or the D emo- crats on the basis of their economic policies shifted their support to the Republicans as slavery replaced tariffs and economic concerns as the central issue on the nation’s polit- ical agenda. Many southern Whigs shifted their support to the Democrats.

In the fourth realignment, the Republican candidate, William McKinley, empha- sizing business, industry, and urban inter ests, defeated the D emocrat, William Jennings Bryan, in 1896, who spoke for sectional inter ests, farmers, and miners. Republican dominance lasted until the fifth realignment, during the period 1932–36, when the Democrats, led by Franklin Delano Roosevelt, took control of the White House and Congr ess. Despite sporadic interr uptions, the D emocrats maintained control of both through the 1960s. Since that time, American party politics has been characterized primarily by party polarization and by divided government, wherein the presidency is controlled by one party while the other party controls one or both houses of Congress.

Major partisan realignments are rare in the U nited States, occurring on av er- age about once every 50 y ears. There are frequent false alarms, when pundits describe elections as r ealignments and they turn out not to be. When r ealign- ments do occur, it is often the r esult of new issues or societal pr oblems, coupled with economic or political crises that w eaken the established political elite and allow new groups of politicians to create coalitions capable of capturing the reins of governmental power. In the 2016 pr esidential election, significant factions of the Republican Party were in disagreement over Donald Trump’s candidacy, lead- ing some observers to question whether the election was the beginning of a ne w party realignment. Many high-profile Republican politicians r efused to suppor t Trump, but in his first two years congressional Republicans have generally sup - ported Trump’s agenda.

AMERICAN THIRD PARTIES SOMETIMES CHANGE THE MAJOR PARTIES AND ELECTION OUTCOMES

Although the U nited S tates has a two par ty–dominant system, the countr y has always had more than two parties. Typically, third parties in the United States (parties that organiz e to compete against the two major American political par ties) have represented social and economic interests that, for one reason or another, were not given voice by the two major parties.3 Such parties often provide new ideas and even party realignment. The Populists, a party centered in the rural areas of the West and Midwest, and the P rogressives, spokespeople for the urban middle classes in the late nineteenth and early tw entieth centuries, ar e the most impor tant examples in the past 100 y ears. The most successful recent third-party candidate was H. R oss Perot, who ran in 1992 for president as an independent and in 1996 as the Reform Party’s nominee. Perot won the votes of almost one in five Americans in 1992. In the extremely close 2000 pr esidential election, third-party candidate Ralph N ader won just 3 percent of the popular vote; but that was enough to swing the election to

218 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 218 11/28/18 5:55 PM

Republican George W. Bush. Table 7.1 lists the top presidential candidates in 2016. Third-party candidates fared better in 2016 than in the last thr ee presidential elec- tions, leading some observers to suggest that third parties were one reason Clinton lost key battleground states and thus the election.

Although the Republican Party was the only American thir d party ever to make itself permanent (by replacing the Whigs), some third parties have enjoyed influence far beyond their electoral siz e. This was because large parts of their pr ograms were adopted by one or both of the major par ties, who sought to appeal to the v oters mobilized by the new party to expand their own electoral strength. The Democratic Party, for example, became a great deal more liberal when it adopted most of the Pro- gressive program early in the twentieth century. Many Socialists felt that FDR’s New Deal had adopted most of their par ty’s program, including old-age pensions, unem- ployment compensation, an agricultural marketing program, and laws guaranteeing workers the right to organize into unions.

Some proponents of election r eform argue that two major par ties are not suf - ficient to represent the varied interests of America’s 325 million people and that more political parties would improve representation. Many nations have proportional representation. Under this kind of system, many competing political par ties field multiple candidates in each district and ar e awarded legislative seats in r ough pro- portion to the percentage of popular votes that each party wins. A party that wins, say, 20 per cent of the popular v ote receives roughly 20 per cent of the seats in the parliament or other representative body. Unlike a plurality system, a party’s candi- dates need not come in first to win seats.

In the United States, state ballot-access laws are often a major impediment for third par ties, imposing barriers such as r egistration fees or petition r equire- ments in which a certain number of voters must sign a petition for a third-party or

TABLE 7.1

Parties and Candidates in 2016

CANDIDATE PARTY VOTE TOTAL* PERCENTAGE

OF VOTES

Hillary Clinton Democratic 65,853,652 48%

Donald Trump Republican 62,985,134 46

Gary Johnson Libertarian 4,489,235 3

Jill Stein Green 1,457,226 1

Other candidates 1,186,153 0.9

*Preliminary counts as of December 1, 2016.

SOURCE: U.S. Election Atlas, “2016 Presidential General Election Results,” www.uselectionatlas.org/RESULTS/ national.php?year=2016&minper=0&f=0&off=0&elect=0 (accessed 7/16/18).

219AMER ICA IS ONE OF THE FEw NAT IONS w ITH A TwO -PARTY SYSTEM

wtp12e_ess_ptr_ch07_204-245.indd 219 11/28/18 5:55 PM

independent candidate to gain ballot access. States with lower access hurdles, such as Minnesota, have more third-party candidates. S upporters of the curr ent two- party system contend that it cr eates stability in go verning and pr events the need for coalition go vernment, where multiple small par ties work together to form a majority to govern.

GROUP AFFILIATIONS ARE BASED ON VOTERS’ PSYCHOLOGICAL TIES TO ONE OF THE PARTIES

One reason parties are so important is that many voters develop party identification— an individual voter’s psychological ties to one par ty or another. Party identifica­ tion has been compar ed to w earing blue- or r ed-tinted glasses; it colors v oters’ understanding of politics in general and is the most important cue as to how to vote in elections. That is, most Republicans vote for Republican Party candi- dates, and most D emocrats vote for D emocratic Party candidates. Although it is an emotional tie, par ty identification also has a rational component. Voters gene rally form attachments to parties that reflect their views and interests. Once those attachments are formed, however, they are likely to persist and ev en to be handed down to children, unless some very strong factors convince individuals that their party is no longer an appropriate object of their affections. Figure 7.3 indicates the r elationship between par ty identification and a number of social characteristics.

Political Participation Takes Both Traditional and Digital Forms

Political par ticipation r efers to activ - ities designed to influence govern- ment, politics, and policy . These activities include traditional forms of par ticipation, such as v oting and

volunteering, as well as newer online forms of participation.

VOTING IS THE MOST IMPORTANT FORM OF TRADITIONAL PARTICIPATION

Elections are the hallmark of political par ticipation in a democracy. For most citi- zens today, voting is the most common form of participation in politics. In addition to voting, citizens can giv e money to politicians or political organizations, v olun- teer in campaigns, contact political officials, sign petitions, attend public meetings, join organizations, display campaign signs and pins, write letters to the editor, pub- lish articles, attend rallies, or lobby their representatives in Congress. They can also join interest groups (see Chapter 8). These other forms of political action generally require more time, effort, or money than voting.

Describe the major forms of traditional and digital participation in politics

220 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 220 11/28/18 5:55 PM

DIGITAL POLITICAL PARTICIPATION IS SURGING

Digital political par ticipation is rapidly changing the way Americans experience politics. The internet and social media give citizens greater access to political inform- ation about candidates and campaigns, and a greater role in politics, than ever before. Many forms of online participation build on traditional forms of participation, but the internet makes many of these activities easier and giv es them gr eater poten - tial as community -building tools. O nline par ticipation in elections includes dis - cussing issues or mobilizing suppor ters thr ough email and social media, posting

FIGURE 7.3

Who Identifies with Which Party? Party identification varies by income, race, and gender. For example, as these statistics from 2016 show, Americans with higher incomes are more supportive of the Republican Party than are Americans with lower incomes. Women are significantly more likely than men to identify with the Democratic Party, whereas more men identify as independents.

NOTE: Percentages do not add to 100 because the category “Other/Don’t know” is omitted.

SOURCE: American National Election Study 2016 time series, www.electionstudies.org (accessed 11/4/17).

Income $75K+

Income $40–75K

Income $20–40K

Income <$20K

Postgraduate

College graduate

Some college

High school diploma or less

Hispanic

Asian

Black, non-Hispanic

White, non-Hispanic

Age 65+

Age 50–64

Age 30–49

Age 18–29

Women

Men

Democrat Independent Republican

28% 40% 31%

39 34 27

35 41 24

34 41 25

34 34 32

34 37 29

28 37 35

73 23 4

34 39 27

46 39 16

35 39 26

31 39 30

31 34 35

44 33 24

40 40 20

38 39 23

32 37 31

32 35 34

221POL IT ICAL PART IC IPAT ION TAKES BOTH TRADIT IONAL AND D IG ITAL FORMS

wtp12e_ess_ptr_ch07_204-245.indd 221 11/28/18 5:55 PM

comments on blogs and online news stories, contributing money to candidates, visiting candidate and political par ty websites, creating and vie wing online campaign ads, campaigning on social networking sites, and organizing face -to-face neighborhood meetings through social media.

Digital media’s effectiveness works through emotional appeals, immediacy, per- sonal networ ks, and social pr essure. S ocial connections ar e much mor e impor tant in political participation than was pr eviously understood. Research reveals that indi- vidual factors such as income and education ar e imperfect predictors of turnout, but one’s social network is strongly predictive of political participation. When members of a social network indicate they have voted in an election or contributed to a candidate, for example, that can motivate others to do the same. Peer social pressure allows mem- bers of a social network to model and mimic actions of other members of their group.4

Social media in particular has become a key networking tool for politics and a pre- ferred platform of candidates and political organizations. Sixty-two percent of Ameri- cans get ne ws on social media. 5 One in thr ee social media users hav e encouraged others to vote, and roughly the same per centage have shared their own thoughts or comments on politics or government using social media.6 Social media is character- ized by tiny acts of political participation—sharing, following a candidate or organi- zation, liking a post, commenting—that can scale up to dramatic changes, leading to real world political protests, voter mobilization drives, and the election of candidates and par ties to go vernment.7 Small acts of political par ticipation made possible b y social media may give those uninterested in politics or who are rarely engaged a way of getting involved easily, which can than encourage them to do more.8

Politicians, too, make much use of social media. In 2016 every serious presiden- tial candidate had a Facebook page and Twitter account, with millions of fans who received frequent updates from the campaigns and candidates. These fans, in turn, signaled to their “friends” which candidates they supported for elected office, mak- ing politics par t of everyday discussion. Donald Trump’s supporters receive emails from his organization, follow him on Twitter and Facebook, and turn out for rallies and campaign events. While Twitter is how Trump talks to the people, Facebook was how his campaign won the election. Based on a survey analysis of 65,000 registered voters and holding all other demographic factors constant, fr equent social media users were more likely to vote for Trump than any other candidate in 2016.9

Unlike traditional social movements that gain momentum slowly over time, digi- tal politics, and the use of social media especially , can create punctuated explosive bursts of collective action. For example, Bernie Sanders’s supporters relied heavily on Reddit to organize rallies and rock concerts during the 2016 presidential primaries on behalf of the Vermont senator.

An impor tant question is whether online political par ticipation influences offline participation, especially voting. A growing body of r esearch finds that online activities such as reading digital news, commenting on blogs, and using email or social media for politics increases the likelihood of voting. Digital politics is associated with contributing to political campaigns, volunteering on behalf of candidates, and ev en contacting elec- ted officials. Online participation is also linked with discussing politics with friends or family, developing an interest in politics in general, and being politically knowledgeable.

222 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 222 11/28/18 5:55 PM

VOTER TURNOUT IN AMERICA IS LOW

Today, voting rights are granted to all American citizens aged 18 and older, although some states revoke this right from those who have committed a felony or are mentally impaired. Despite granting the right to vote, or suffrage, to women, racial minorities, and young adults, however, the percentage of eligible individuals who actually vote in America, or turnout, is low. Only 6 in 10 eligible Americans v ote in presidential elections, and turnout for midterm elections (elections that fall between presidential elections) is typically lo wer, about one -third of eligible v oters; for local elections, turnout is even lower10 (see Figure 7.4). Turnout in state and local races that do not

FIGURE 7.4

Voter Turnout in Presidential and Midterm Elections, 1892–2018 Since the 1890s, participation in elections has declined substantially. One pattern is consistent across time: more Americans tend to vote in presidential election years than in years when only congressional and local elections are held. What are some of the reasons that participation rose and fell during the last century?

*Percentage of voting-eligible population

SOURCES: Erik Austin and Jerome Clubb, Political Facts of the United States since 1789 (New York: Columbia University Press, 1986); United States Election Project, www.electproject.org (accessed 11/9/18).

Presidential election

Midterm election

2000 2012 20241904 1916 1928 1940 1952 1964 1976 1988

80%

70

50

40

30

20

10

0

60

1892

After 1960, political parties grew weaker and less likely to mobilize voters. In the early 1970s, trust in federal government declined with the Watergate scandal.

During the late nineteenth and early twentieth centuries, reforms such as requirements for voter registration discouraged voters from going to the polls.

During the New Deal era, politicians and unions mobilized urban immigrants to vote for the €rst time.

PERCENTAGE WHO VOTED*

223POL IT ICAL PART IC IPAT ION TAKES BOTH TRADIT IONAL AND D IG ITAL FORMS

wtp12e_ess_ptr_ch07_204-245.indd 223 11/28/18 5:55 PM

coincide with national contests is typically much lo wer. In most E uropean coun- tries and other Western democracies, by contrast, national voter turnout is usually between 70 and 90 percent.11

WHY DO PEOPLE VOTE?

Three factors organize our understanding of voting in elections: (1) a person’s social and demographic background and attitudes about politics, (2) the political environ- ment in which elections take place and whether an election is contested among at least two political candidates, and (3) the state electoral laws that shape the political process.

Social Background Americans with higher levels of education, more income, and higher-level occupations—collectiv ely, what social scientists call higher socioeco- nomic status—participate much mor e in politics than do those with less education and less income.12 Education level is the single most important factor in predicting whether an individual will v ote or engage in most other kinds of par ticipation. Unsurprisingly, income is an important factor when it comes to people making cam- paign contributions. Those with money, time, and capacity to participate effectively in the political system are more likely to do so.13 Other individual characteristics also affect participation. For example, African Americans, Asian Americans, and Latinos are less likely to participate than are whites, although when differences in education and income are taken into account, African Americans par ticipate at similar lev els to whites.14 Finally, young people are far less likely to participate in politics than are older people. Individuals with strong partisan ties to one of the major political par- ties are more likely to vote than nonpartisans or independents.

The Political Environment, Mobilization, and Competition Political environments— defined by social networ ks, communities and neighborhoods, states, and r egion— matter a gr eat deal in understanding individual political behavior . Whether or not people feel engaged or are recruited to participate in politics depends on their social setting—their friends and family, where they live, what associations they belong to. A critical aspect of political environments is whether people are mobilized—by parties, candidates, campaigns, interest groups, and social movements. A recent comprehen- sive study of the decline in political participation in the United States found that half of the drop-off could be accounted for by reduced mobilization efforts—the process by which large numbers of people are organized for a political activity.15

An additional factor is whether elections are competitive—that is, whether there are at least two candidates actively contesting a position in government.16 Competi- tive elections, and the campaign spending and mobilization efforts that go along with them, directly affect turnout rates.17 To be motivated to vote, individuals must be interested in the election and kno wledgeable about the candidates. I n competi- tive elections, when candidates and political parties spend more effort and money to compete for an elected office, more information becomes available to voters in the form of media ads, news coverage, door-to-door campaigns, online campaigns, and

224 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 224 11/28/18 5:55 PM

more. E lectoral competition r educes the cost to individuals of becoming informed, leading to higher turnout. Conv ersely, if elections ar e uncompetitiv e, or uncon - tested, they generate little political infor- mation. Limited exposur e to competitiv e elections may be one r eason for the lo wer levels of turnout recorded since the 1960s.

State Electoral Laws S tate electoral laws, which v ary widely fr om state to state, create formal barriers to v oting that can r educe par ticipation. I n most other democratic nations, where voting rates are higher, citizens are automatically registered to vote; but the United States generally requires a two-step process: registering to vote and then v oting. (Thirteen states plus Washington, D .C., have adopted automatic voter registration, whereby eligible r esidents are automatically r egistered to v ote.) Eighteen states and D.C. allow voters to register and cast a ballot on the same day , but most states require registration in advance of Election Day. Registration require- ments par ticularly r educe v oting b y the y oung, those with lo w education, and those with low incomes because r egistration requires higher political inv olvement, planning, and effort than does the act of v oting itself . Those with relatively little education may become interested in politics once the issues of a particular campaign become salient, but by then it may be too late for them to register, especially if they live in states that require registration up to a month before the election. And because young people tend to change r esidences more often than older people, registration requirements place a greater burden on them. (Information on registering to vote in your state is provided in the back of the book.)

In addition to registration, other election regulations have an impact on turnout. For example, in most other nations elections are held on weekends, when most peo- ple are not working, or their election day is tr eated as a holiday. The United States holds elections during the work week. Many states maintain residency requirements that r esult in citiz ens’ losing their r egistration if they mo ve their r esidences even short distances. Most states purge their voter-registration rolls of voters who fail to vote for a giv en period of time. America holds many different elections, often at staggered times throughout the year, such as primar y elections and elections for local offices and school budget votes, rather than consolidating elections at a single time. A relatively recent barrier is a r equirement that voters provide proof of iden- tity. As of 2018, 34 states require all voters to show some form of ID before voting. Seven of these states r equire a photo ID, while another 10 r equest photo ID but may count the vote with nonphoto ID under some circumstances. In the remaining states, nonphoto forms of ID ar e acceptable.18 Voter ID laws in the states may dis - proportionately reduce voter turnout of certain groups: racial minorities, the elderly, and the poor.19

Convenience voting, such as early voting and voting by mail, removes the need to stand in a potentially long line to cast a vote and may result in increased voter turnout.

225POL IT ICAL PART IC IPAT ION TAKES BOTH TRADIT IONAL AND D IG ITAL FORMS

wtp12e_ess_ptr_ch07_204-245.indd 225 11/28/18 5:55 PM

Voter Turnout in Comparison Over the past 20 years, voter turnout in U.S. national elections has hovered around 45 percent of the voting-age population. while the number is significantly higher in presidential elections than in midterm elections (in the 2018 midterm elections, turnout was roughly 49 percent),a voting rates in the United States still lag behind those in many other democratic countries.

why does voter turnout vary so much from country to country?

One explanation relates to the rules governing elections. In many democracies,

citizens are automatically registered to vote when they reach a certain age; in contrast, U.S. citizens generally must register themselves, reregister if they move, and, in many states, register a certain number of days before the election. Many countries hold their elections on a Sunday, send their ballots through the mail, or declare their election day a national holiday. Voting is also compulsory in many countries. Australia, for instance, charges a $20 fine (about US$16) unless a citizen can provide a good excuse for why she did not vote.b

aInternational Institute for Democracy and Electoral Assistance (IDEA), Voter Turnout Database, www.idea.int/data-tools/ data/voter-turnout (accessed 4/12/18). bNicole Hasham, “Election 2016: Voter Turnout Lowest since Compulsory Voting Began in 1925,” The Sydney Morning Herald, August 8, 2016, www.smh.com.au/politics/federal/election-2016-voter-turnout-lowest-since-compulsory-voting-began-in -1925-20160808-gqnij2.html (accessed 4/12/18).

Compulsory voting

Weekend or holiday voting

Automatic or compulsory registration

AVERAGE TURNOUT IN NATIONAL ELECTIONS, 1990–2018

81Australia

India

United Kingdom

Canada

Mexico

United States

Switzerland

65

57

60

55

45

39

SOURCES: International Institute for Democracy and Electoral Assistance (IDEA) voter turnout database, www.idea.int/vt/viewdata.cfm, and the ACE Electoral Knowledge Network, www.aceproject.org/epic-en/ CDMap?question=VR008&f= (accessed 3/27/18).

wtp12e_ess_ptr_ch07_204-245.indd 226 11/28/18 5:55 PM

Some states have taken steps to make v oting easier, such as same -day and auto- matic registration discussed above. Additionally, some western states use an all-mail voting system, thus eliminating polling places altogether . M any states no w offer early voting, which allows registered voters to cast a ballot at their r egular polling place up to 40 days before the election.

Voters Decide Based on Party, Issues, and Candidate

Three key factors influence voters’ decisions at the polls: party loyalty, issue and policy concerns, and candidate characteristics. The promi-

nence of these thr ee bases for electoral choice v aries from contest to contest and voter to voter.

PARTY LOYALTY IS IMPORTANT

Partisan identification predisposes voters in fav or of their par ty’s candidates and opposes those of the other par ty (see F igure 7.5). A t the lev el of the pr esidential contest, issues and candidate personalities may become very important, although even here many Americans suppor t presidential candidates primarily because of party loyalty. But partisanship is more likely to be a factor in the less visible races, where issues and the candidates ar e not as w ell known. State legislative races, for example, are often decided by voters’ party ties. Once formed, voters’ partisan loyalties seldom change. Voters tend to keep their par ty affiliations unless some crisis causes them to r eexamine the bases for their lo yalty and decide to suppor t a different party, such as happened at the beginning of the N ew Deal era, between 1932 and 1936, when millions of former R epublicans transferred their allegiance to FDR and the Democrats.

After the 1960s, many analysts expr essed concern that American par ties had become too w eak to play their r ole in conv erting popular political par ticipation into effective government. These scholars noted such trends as a decline in partisan attachment within the electorate, a gr owth in the number of v oters identifying as independents, and a rise in so -called split-ticket voting. This overall trend, some- times termed “dealignment,” was seen as a pr oduct of growing social diversity and educational attainment, which made v oters less r eliant on par ties to guide their political decision-making. The growth of the mass media, particularly television, also seemed to reduce the role of parties in elections as television tends to focus on the personalities of individual candidates rather than the “institution ” of the party. Today, party loyalties in America continue to be in a state of flux. On the one hand, the percentage of voters who declare no party loyalty remains at an all-time high.20 On the other hand, par ty identification among a large number of the most active voters has grown stronger.21

Examine the factors that influence voters’ decisions

227VOTERS DEC IDE BASED ON PARTY, I SSUES , AND CAND IDATE

wtp12e_ess_ptr_ch07_204-245.indd 227 11/28/18 5:55 PM

ISSUES CAN SHAPE AN ELECTION

Issues and policy pr eferences are a second factor influencing voters’ choices at the polls. Voters may cast their ballots for the candidate whose position on economic issues they believ e to be closest to their o wn or the candidate who has what they believe to be the best r ecord on for eign policy or immigration. I ssues ar e mor e important in some races than in others.

In 2016, for example, D onald Trump made curbing immigration and building a wall along the U.S. -Mexico border a key issue of the pr esidential campaign. Demo- cratic candidate Hillary Clinton, on the other hand, supported comprehensive immi- gration reform, including an easier path to full and equal citizenship and ending family detention. If candidates actually do “take issue” with one another—that is, ar ticulate and publicize very different positions on important public questions—voters are more likely to be able to identify and act on whatever policy preferences they may have.

Voters’ issue choices usually involve a mix of their judgments about the past beha- vior of competing parties and candidates and their hopes and fears about candidates’ future behavior. Political scientists call choices that focus on future behavior prospect- ive voting, whereas those based on past per formance are called retrospective voting. Retrospective economic voting, in which voters evaluate candidates on the str ength of the economy, has been found to be more important than prospective voting.

FIGURE 7.5

The Effect of Party Identification on the Vote, 2016 In 2016 about 90 percent of Democrats and Republicans supported their party’s presiden- tial candidate. Should candidates devote their resources to converting voters who identify with the opposition or to winning more support among independents? What factors might make it difficult for candidates to simultaneously pursue both courses of action?

228 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 228 11/28/18 5:55 PM

CANDIDATE CHARACTERISTICS ARE MORE IMPORTANT IN THE MEDIA AGE

Candidates’ personal attributes always influence voters’ decisions. The important candidate characteristics that affect voters’ choices include race, ethnicity , religion, gender, geography, and social backgr ound. I n general, v oters may be pr oud to see someone of their ethnic, r eligious, or geographic background in a position of leadership, and they may presume that such candidates are likely to have views and perspectives close to their o wn. This is why, for many y ears, politicians sought to “balance the ticket,” making certain that their party’s ticket included members of as many important groups as possible.

Just as candidates ’ personal characteristics may attract some v oters, they may repel others. Many voters are prejudiced against candidates of certain ethnic, racial, or religious groups. And for many years voters were reluctant to support the candi- dacies of women, although this appears to be slowly changing. Indeed, that the 2008 Democratic candidate was a black man, the 2012 Republican presidential candidate a Mormon, and the 2016 D emocratic candidate a woman indicates the incr easing diversity of candidates for public office.

Voters also pay attention to candidates’ personality characteristics, such as “deci- siveness,” “honesty,” and “vigor.” In recent years integrity has become a key election issue. In the 2016 pr esidential election, many Americans questioned the tr ustwor- thiness of both Hillary Clinton and Donald Trump. Nonetheless, Trump supporters saw their candidate as unafraid to speak his mind. Clinton supporters, on the other hand, admired her ambition, toughness, and discipline.

The Electoral Process Has Many Levels and Rules

Three types of elections ar e held in the United States: primary elections, general elections, and initiativ e and referendum elections; the last ar e where pr oposed laws ar e placed on the ballot for a popular vote.

Primary elections are elections within a political party to select each party’s candi- dates for the general election. In the case of local and statewide offices, the winners of primary elections face one another as their parties’ nominees in the general election. At the pr esidential level, however, primary elections ar e indirect because they ar e used to select state delegates to the national conv entions, at which the major par ty presi dential candidates ar e chosen. The United States is one of the fe w nations in the world to use primar y elections. In most countries, nominations ar e controlled by party officials. The primary system was intr oduced at the turn of the tw entieth century by Progressive reformers who hoped to weaken the power of party leaders; the introduction of primary elections for the first time enabled voters, rather than party elites, to pick the candidates to compete in the general election.

Explain the major rules, levels, and types of elections in the United States

229THE ELECTORAL PROCESS HAS MANY LEVELS AND RULES

wtp12e_ess_ptr_ch07_204-245.indd 229 11/28/18 5:55 PM

Under the laws of most states, only registered members of a political party may vote in a primar y election to select that par ty’s candidates. This is called a closed primary. Other states allow all registered voters to choose on the day of the primary in which par ty’s primar y they will par ticipate. This is called an open primary. In nominating presidential candidates, though most states hold primar y elections, about one-third use caucuses instead, which are essentially party business meetings held to select candidates.

The primary is followed by the general election, a regularly scheduled election involving most districts in the nation or state, in which v oters decide who wins office; in the United States, general elections for national office and most state and local offices are held on the first Tuesday following the first Monday in November in even-numbered years (every four years for presidential elections).

Beyond presidential and congr essional elections, 24 states also pr ovide for the initiative process. Ballot initiatives allow citizens to circulate petitions to place policy change or proposed laws directly on the ballot for a popular vote. If a ballot measure receives majority suppor t, it becomes law. In r ecent y ears voters in sev eral states have voted to raise taxes on the wealthy, prohibit social services for undocumented immigrants, end affirmative action, provide universal health care, create nonpartisan redistricting, protect open space and the environment, and prevent offshore drilling. At the turn of the tw entieth century, ballot initiativ es were used to grant women suffrage (the right to v ote), prevent child labor, limit the wor kday to eight hours, adopt progressive taxes, and allow voters to elect U.S. senators directly (rather than having them chosen by state legislatures).

Voters often turn out in higher numbers when there are controversial initiatives on the ballot. In 2016, Californians voted on a total of 18 ballot measures, including whether to legalize recreational marijuana, which ultimately passed.

230 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 230 11/28/18 5:55 PM

All 50 states hav e the legislative referendum, in which the state legislatur e refers certain laws to the voters for a popular vote. Ballot measure campaigns often involve high spending by proponents and opponents and mass media campaigns that can rival those of congressional and presidential candidates within a state.

The general referendum and initiativ e ar e called dir ect democracy because they allow voters to govern directly without intervention by government officials or the political parties. The validity of ballot measure results, however, is subject to judicial action. I f a court finds that an initiative violates the state or national constitution, it can overturn the result. This happened in the case of a 1995 California initiative curtailing social services to undocumented aliens and again in 2012 when the federal cour ts overturned California’s Proposition 8 banning same-sex marriage.22 Hundreds of initiativ es and r eferenda appear on state elec - tion ballots every two years.

Eighteen states also have legal provisions for recall elections, which allow voters to remove governors and other state officials from office prior to the expiration of their terms. Generally, a recall effort begins with a petition campaign. I n California, for example, if 12 percent of those who voted in the last general election sign petitions demanding a special r ecall election, one must be held. I n 2003 many California voters blamed Governor Gray Davis for the state’s $38-billion budget deficit, and he was turned out of office in a recall election. Federal officials, such as the president and members of Congress, are not subject to recall.

THE ELECTORAL COLLEGE STILL ORGANIZES PRESIDENTIAL ELECTIONS

In the early histor y of popular v oting, nations often made use of indir ect elections. In these elections, voters would choose the members of an intermediate body . These members would, in turn, select public officials. The assumption underlying such pro- cesses was that or dinary citizens were not really qualified to choose their leaders and could not be tr usted to do so dir ectly. The last vestige of this pr ocedure in America is the electoral college, the group of electors who formally select the president and vice president of the United States.

When Americans go to the polls on Election Day, they are technically not voting directly for presidential candidates, even though they mark ballots as such; they ar e instead choosing among slates of electors selected by each state’s party and pledged, if elected, to support that party’s presidential candidate. Electors are allocated to each state based on the size of the state’s congressional delegation (senators and House members); larger -population states thus hav e mor e v otes in the electoral college. North Dakota, for example, has 3 votes in the electoral college (based on its 2 senators plus 1 representative), while California has 55 (2 senators plus 53 representatives).

The presidential candidate who receives a majority of the electoral college ’s 538 votes (a majority is 270) becomes president—not necessarily the candidate with the most votes from the people. This is in part because the electoral college and most elections in the U nited States are governed by plurality, or winner -take-all, rules. With only two exceptions, each state awards all of its electors to the candidate who

231THE ELECTORAL PROCESS HAS MANY LEVELS AND RULES

wtp12e_ess_ptr_ch07_204-245.indd 231 11/28/18 5:55 PM

receives the most votes in the state. 23 Thus, Trump received all 29 of F lorida’s elec- toral votes, though he won only 49 percent of the votes in the state.

Only four times in the nation ’s history has the winner in the electoral college not won the popular vote. Since electoral votes are won on a state -by-state basis, it is mathematically possible for a candidate who r eceives a nationwide popular plurality to fail to carr y states whose electoral v otes would add up to a majority . Thus, in 1876, Rutherford B. Hayes was the winner in the electoral college despite receiving fe wer popular v otes than his riv al, S amuel Tilden. I n 1888, G rover Cleveland received more popular votes than Benjamin Harrison but fewer electoral votes, so Harrison was elected. In 2000 a lengthy legal battle over recounting votes in Florida ultimately ended with the Supreme Court’s decision in Bush v. Gore that handed George W. Bush the presidency.24 But while Bush had won a majority in the electoral college, Democratic candidate Al Gore had won more votes nationwide. In 2016, H illary Clinton won almost 3 million mor e votes, but D onald Trump won in the electoral college. These controversial elections generated new calls for electoral reform.

The 2016 and 2018 Elections In 2016, D emocrat H illary Clinton faced Republican Donald Trump in a dramatic and bitterly fought presiden- tial race. Despite media predictions of Democratic success, Trump won a sur-

prise victory with a majority of votes in the electoral college, though Clinton won the popular vote, receiving 2.9 million mor e votes than Trump. The GOP also retained control of both houses of Congr ess. In the 2018 midterm elections, D emocrats won control of the H ouse of R epresentatives for the first time since 2010. Republicans, however, were able to expand their majority in the U.S. Senate.

THE 2016 ELECTIONS

After closely contested and often rancor ous nomination battles, former first lady, senator, and secretary of state Hillary Clinton and real estate mogul, reality TV star, and first-time candidate D onald Trump faced one another in the general election. Clinton seemed to possess sev eral adv antages, especially her experience in public office and the Democrats’ seeming adv antage in the electoral college. B ased on voting patterns in recent elections, states with a total of roughly 217 electoral votes were considered “blue states, ” either safely D emocratic or fav orable to the D emocrats. States with another 32 electoral votes leaned toward the Democrats, potentially putting the D emocratic candidate within 21 of the 270 v otes needed to win. The Republicans, by contrast, could generally only count on ar ound 191 electoral votes from reliably “red” states. Democratic candidates, moreover, usually receive sup- port from the most rapidly gr owing segments of the electorate—namely , minority voters—along with women and young people.

Analyze the strategies, issues, and outcomes of the 2016 and 2018 elections

232 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 232 11/28/18 5:55 PM

The Trump campaign was confident it could overcome the Democrats’ advantages. Trump believed his appeal to blue -collar white voters, especially men, would make him competitive in Democratic strongholds in Midwestern states. He also calculated that he would increase Republican support among white voters sufficiently to offset the Democratic edge among nonwhite voters. Moreover, Trump hoped that his pro- vocative style would continue to encourage extensive free media coverage, offsetting Clinton’s fund-raising advantage and ability to spend freely on paid campaign ads.

Gender played a significant, though ultimately not decisive, role in 2016. Not only did this election see the first female presidential candidate representing a major party, but gender issues were also headline news throughout much of the election. Donald Trump made comments about women that many people deemed offensive and similar past comments of his were unearthed. The Trump campaign countered that Clinton’s husband had also treated women inappropriately. Nonetheless, by November, exit polls showed a gender gap of 13 percentage points, with 54 percent of women supporting Clinton compared with 41 percent of men.

The media played an outsized role in 2016. In the general election, Trump received more than double Clinton’s free media attention.25 He excelled on the cam- paign trail, tw eeting his daily campaign messages and effectively writing his o wn headline news. At the same time, some people, including Trump himself, believed that the ne ws media’s political bias fav ored Clinton. Trump began declaring that the mainstream media published and broadcast “fake news” and should be ignored.

Lastly, money mattered—and it didn’t. Clinton raised and spent twice as much as the Trump campaign and had superior organization, with more field offices than Trump in almost ev ery state. H owever, Trump’s enormous fr ee media co verage (estimated to be worth as much as $2 billion) mor e than offset Clinton’s financial edge. Almost ev ery morning, a ne w and ev er mor e outrageous Trump tw eet or Facebook post would dominate the news, leaving little space for Clinton to set the media agenda.

UNDERSTANDING THE 2016 RESULTS

In the end, the 2016 pr esidential election was a historic upset in which the national media and the polling for ecasts w ere mistaken. M any Americans who had been following the opinion polls and media analyses befor e the election w ere stunned by Trump’s surprise win and b y the R epublicans’ success in r etaining contr ol of both houses of Congress. Trump’s unexpected success in the northern industrial states of M ichigan, Pennsylvania, and Wisconsin—all of which had gone to O bama in 2012—ultimately tipped the balance, leading to his victor y in the electoral college (see Figure 7.6). For only the four th time in U.S. histor y, the candidate who won a majority in the electoral college did not win the popular vote. Republicans also retained control of both houses of Congress as well as a majority of the state legislatures.

Russian Hackers Meddled in the 2016 Elections Soon after the conclusion of the campaign, Democrats charged that Trump had been helped by Russian hacking of the Democratic National Committee and Clinton emails and “ trolls” mounting

233THE 2016 AND 2018 ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 233 11/28/18 5:55 PM

FIGURE 7.6

Distribution of Electoral Votes in the 2016 Election NOTE: Maine and Nebraska allocate electoral college votes by congressional district. Donald Trump won one of Maine’s four electoral votes.

SOURCE: “Presidential Election Results: Donald J. Trump Wins,” New York Times, www.nytimes.com/elections/ results/president (accessed 11/18/16).

CA 55

CT 7

NJ 14

RI 4

NY 29

VT 3

NH 4

WA 12

MI 16

OH 18

VA 13

WV 5

MN 10

IA 6

OR 7

MD 10

MA 11

ME 4

HI 4

IL 20

IN 11

WI 10

NM 5

AZ 11

NC 15

AK 3

CO 9

ID 4

UT 6

MT 3

WY 3

ND 3

SD 3

TN 11

NE 5

OK 7

TX 38

SC 9

NV 6

FL 29

AL 9

LA 8

GA 16

AR 6

KY 8

KS 6

MO 10

MS 6

PA 20

DC 3

DE 3

For Trump/Pence (R)For Clinton/Kaine (D)

a social media campaign aimed at defeating Clinton. Multiple r eports from the national intelligence agencies confirmed the Russian government did seek to inter- vene in the 2016 election. For example, in October 2018, Twitter released millions of tweets from some 3,400 accounts linked to a R ussian “troll farm” known as the Internet Research Agency run by the Kremlin.26 At this agency, approximately 1,000 Russian agents, working 24 hours a day spent mor e than a million dollars a w eek creating thousands of social media accounts impersonating Americans. These agents also purchased thousands of political ads pr omoting their posts on F acebook and other platforms. Russian groups also organized campaign rallies in the United States on behalf of Donald Trump and sought to discredit Hillary Clinton, portraying her as a criminal and untrustworthy.

The fact that the Russians meddled in the 2016 election raised questions about whether the Trump campaign had kno wledge of R ussian efforts or in any way worked with the R ussians. To answ er these questions, a pr obe led b y S pecial

234 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 234 11/28/18 5:55 PM

Counsel and former FBI director Robert Mueller was launched in May 2017. As a result of the M ueller probe, a half doz en Trump campaign officials have been indicted for v arious federal crimes and violations of campaign laws. P resident Trump has v ehemently denied allegations of impr opriety and denounced the Mueller probe as a “witch hunt” organized by his political foes. At the time of this writing the r elationship between the Trump campaign and the R ussian govern- ment remains unclear.

THE 2018 ELECTION: A BLUE WAVE MEETS A RED WALL

The 2018 election, more than most midterm contests, revolved around the president. Trump’s outsized personality and frequent inflammatory rhetoric inspired anger on the par t of some v oters and fierce loyalty on the par t of others. B etween 2016 and 2018, across the nation, hundr eds of thousands of D emocrats who had nev er previously been much inv olved in politics, especially women and y oung people, entered the political arena to oppose Donald Trump. These Democrats engaged in political activity b y signing petitions, attending rallies and pr otests, and contact - ing public officials. In addition, an unusually large number of women launched campaigns for national and state office. These women saw the GOP, and President Trump in par ticular, as insufficiently attentive to issues of sexual harassment. This view was underscored by Republican support for Brett Kavanaugh’s nomination to the Supreme Court despite allegations of sexual assault made against him.

While Democrats mobilized their blue wave, the Republicans also planned their campaigns. P resident Trump made the Kav anaugh fight along with such other hot-button issues as Trump’s deter - mination to stop a caravan of Central American immigrants fr om crossing the U.S. border, major themes as he crisscrossed the countr y speaking to large and usually raucous Republican rallies. In 2016, Trump had promised to build a wall on America ’s south - ern border to hold back immigrants. That wall was never built, but no w President Trump was attempting to build a red wall around GOP strong- holds to hold back the D emocrats’ blue wave.

The Outcome On November 6, 2018, the blue wave crashed against Trump’s red wall with mix ed r esults. D emo- crats won contr ol of the U.S. H ouse of R epresentatives for the first time since 2010, Republicans expanded their

After the 2018 elections there will be a record number of female members of Congress, most of them Democrats. Here, Sharice Davids (left) celebrates after ousting Republican Kevin Yoder. With this victory, Davids became Kansas’ first openly gay member of Congress and the first Native American woman elected to Congress. (She shares the latter distinction with New Mexico’s Deb Haaland, another Native American Democrat elected to Congress in 2018.)

235THE 2016 AND 2018 ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 235 11/28/18 5:55 PM

majority in the S enate, and D emocrats defeated R epublican incumbents in sev en governor’s races. 27 The 2018 elections saw 49 percent v oter turnout—the highest level since 1966 and a strong increase over recent midterm elections. Youth voter turnout, which is historically very hard to increase, soared by 10 percentage points to 31 percent o f voters a ged 18–29. Women were critical to Democratic victo- ries. Women made up more than half the 2018 electorate and suppor ted Demo- cratic candidates by margins of as much as 20 per centage points. The new 116th Congress would include over 100 women in the House and more than 20 in the Senate, an all-time record. In the Senate, two seats previously held by Republicans went to the Democrats, but the GOP won other critical races and extended their control over the chamber.

THE 2018 ELECTION AND AMERICA’S FUTURE

The mixed results of the 2018 election were something of a disappointment to Demo- crats who thought they would hand P resident Trump a cr ushing defeat. As D emo- crats had hoped, however, voter turnout increased sharply in 2018. Some 114 million Americans or 49 percent of the nation’s eligible voters participated. In the last midterm election in 2014, voter turnout was only 36 percent. A majority of the nation’s voters, according to exit polls, saw the election as a referendum on President Trump’s perfor- mance in office. Given Trump’s low levels of public approval, this should have helped the Democrats and, indeed, many mor e voters said they cast their v otes to oppose Trump than voted to support him. On a national basis, Democrats received a clear majority of the v otes cast in congr essional elections, appr oximately 5 million mor e than were cast for Republicans.

Despite losses in the S enate, taking contr ol of the H ouse of R epresentatives was an impor tant achievement. With control of the H ouse, Democrats are in a position to block Trump’s legislative efforts and to conduct investigations into the president’s conduct as well as the activities of Trump appointees in the execu- tive branch. The president will almost cer tainly feel compelled to r ely ever more heavily on executive orders and other forms of executive action that bypass the Congress. With the S enate firmly in Republican hands, Trump will continue to use his appointment powers to reshape the bureaucracy and the courts. The stage seems set for two more years of the par tisan struggle that characterizes American democratic politics.

The 2018 elections also made clear that if the Republican Party is to r emain competitive nationally it must dev elop a message that appeals to v oters outside its current base of older white men in America’s small towns and rural areas. The Democrats hav e built a coalition that includes women, minorities, and y oung people. It is no accident that the first Muslim and Native American women elected to Congress along with the first openly gay governor are all Democrats. The Demo- cratic electorate is growing while the GOP’s base represents a shrinking percentage of the national electorate and ev en of the electorate in rapidly gr owing red states like Texas where as formidable a Republican politician as Senator Ted Cruz had to scramble to avoid defeat. If the Republican Party cannot find a way to expand its constituency, 2018 may be the last time the red wall can hold back the blue wave.

236 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 236 11/28/18 5:55 PM

Money Is Critical to Campaigns Modern national political campaigns are fueled by enormous amounts of money . The 2016 election shat- tered pr evious r ecords for campaign

spending. Combined spending b y candidates, par ties, and inter est groups on the congressional and pr esidential races was $6.5 billion in 2016 compar ed with $6.2 billion in 2012 and $5.3 billion in 2008. Of the $6.5 billion, $4.3 billion was spent on congressional races and $2.6 billion on the presidential race.

CAMPAIGN FUNDS COME FROM DIRECT APPEALS, THE RICH, PACS, AND PARTIES

According to the Center for R esponsive Politics, the $6.5 billion spent in 2016 included money from leadership PACs, Super PACs, and 501(c)(4) “dark money” groups (who can shield donor identities). The two presidential candidates raised $1.3 billion combined, including about $500 million b y Hillary Clinton’s cam- paign and $190 million from outside groups supporting her. Donald Trump raised only about $250 million with another $59 million from outside groups.28

Individual Donors Politicians spend a great deal of time asking people for money . Money is solicited via dir ect mail, thr ough the internet, o ver the phone, and in numerous face-to-face meetings. Under federal law, individuals may donate as much as $2,700 per candidate per election, $5,000 per PAC per calendar year, $33,400 per national party committee per calendar year, and $10,000 to state and local com- mittees per calendar y ear. There is no limit on the number of candidates that an individual can give to, however.29

Political Action Committees PACs are organizations established b y corporations, labor unions, or interest groups to channel the contributions of their members and employees into political campaigns. U nder the terms of the 1971 F ederal Election Campaign A ct, which go verns campaign finance in the United S tates, P ACs ar e permitted to make larger contributions to any giv en candidate than individuals ar e allowed to make. Moreover, allied or related PACs often coordinate their campaign contributions, greatly increasing the amount of money a candidate actually r eceives from the same inter est gr oup. M ore than 4,600 P ACs ar e r egistered with the Federal Election Commission, which oversees campaign finance practices in the United States. Nearly two-thirds of all PACs represent corporations, trade associations, and other business and professional groups. Alliances of bankers, lawyers, doctors, and merchants all sponsor PACs.

Outside Spending—Super PACs and Dark Money 527 committees (Super PACs) and 501(c)(4)s (dark money) are independent gr oups that ar e not co vered b y the campaign-spending r estrictions imposed in 2002 b y the B ipartisan Campaign

Describe how candidates raise the money they need to run

237MONEY IS CR I T ICAL TO CAMPA IGNS

wtp12e_ess_ptr_ch07_204-245.indd 237 11/28/18 5:55 PM

Reform A ct, but no w raise much of the money used for political campaigns. These groups, named for the sections of the tax code under which they ar e organized, can raise and spend unlimited amounts so long as their efforts ar e not coordinated with those of any candidate’s campaign. As a result, each presi- dential campaign raises millions fr om sympathetic outside gr oups. A 527 is a group established specifically for the purpose of political advocacy and is required to r eport to the IRS. A 501(c)(4) is a nonpr ofit group that also engages in campaign advocacy but may not spend mor e than half its r evenues for political purposes. Unlike a 527, a 501(c)(4) is not required to disclose where it gets its funds or exactly what it does with them. As a r esult, its funding has earned the name “dark money” and has raised growing concern that the lack of transparency in campaign funding thr eatens fair elections. I ndeed, it has become a common practice for w ealthy and corporate donors, as w ell as for eigners, to r oute cam - paign contributions through 501(c)(4)s to avoid the legal limits on contributions through other channels.

Super PACs came about after the S upreme Court’s 2010 decision in Citizens United v. Federal Election Commission that the government could not restrict inde- pendent expenditures by corporations or unions to political campaigns. Following that decision, SpeechNow v. FEC permitted individuals and organizations to form committees that could raise unlimited amounts of money to r un advertising for and against candidates so long as their efforts were not coordinated with those of the candidates.30

In 2014 the Supreme Court removed additional limits on individuals’ campaign contributions in its decision in McCutcheon et al. v . Federal Election Commission.31 Outside spending via 527s and 501(c)(4)s played an unprecedented role in the 2012 and 2016 pr esidential races as gr oups ran extensiv e television ads. S uper PACs on both sides r elied on v ery large contributions. I n 2016, S uper P ACs supporting candidates’ campaigns spent a total of $594 million. A gr owing concern is that elections in the U nited States can be bought with big money fr om corpo- rations and w ealthy donors, who will then hold significant influence when that candidate is elected.

Public Funding The Federal E lection Campaign A ct also pr ovides for public funding of presidential campaigns. As they seek a major-party presidential nomi- nation, candidates become eligible for public funds b y raising at least $5,000 in individual contributions of $250 or less in each of 20 states. Candidates who reach this threshold may apply for federal funds to match, on a dollar -for-dollar basis, all individual contributions of $250 or less that they receive. In 2016 candidates who accepted matching funds could spend no mor e than $48.7 million, includ - ing matching funds, in their presidential primary campaigns. The funds are drawn from the Presidential Election Campaign Fund. Taxpayers can contribute $3 to this fund, at no additional cost to themselv es, by checking a bo x on the first page of their federal income tax returns. Major-party presidential candidates receive a lump sum (about $96 million in 2016, although neither Clinton nor Trump accepted this money) during the summer prior to the general election, and they must meet

238 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 238 11/28/18 5:55 PM

all their general expenses from this money. Third-party candidates are eligible for public funding only if they r eceived at least 5 per cent of the v ote in the pr evious presidential race.

Under current law, no candidate is required to accept public funding for either the nominating races or the general pr esidential election. Candidates who do not accept public funding ar e not bound b y any expenditure limits. In 2008, John McCain accepted public funding for the general -election campaign, r eceiving $84 million, but B arack O bama declined, choosing to r ely on his o wn fund -raising prowess. Obama ultimately outspent McCain by a wide margin. The 2008 race was the last time that major-party presidential candidates limited their own fund-raising in favor of public funding. N either major par ty candidate accepted public funding in 2012 or 2016.

The Candidates Themselves On the basis of the Supreme Court’s 1976 decision in Buckley v. Valeo, the right of individuals to spend their own money to campaign for office is a constitutionally protected matter of fr ee speech and is not subject to limitation.32 Thus, extremely wealthy candidates often contribute millions of dollars to their own campaigns. The only exception to the Buckley rule concerns presidential candidates who accept federal funding for their general -election campaigns. S uch individuals are limited to $50,000 in personal spending.

In 2014, Shaun McCutcheon successfully challenged the federal limit on the amount of money any one individual can donate to political campaigns and candidates. Many people worry that recent Supreme Court decisions overturning campaign spending limits reinforce the influence of the very affluent in American politics at the expense of everyone else.

239MONEY IS CR I T ICAL TO CAMPA IGNS

wtp12e_ess_ptr_ch07_204-245.indd 239 11/28/18 5:55 PM

Political Parties, Elections, and Participation WHAT DO WE WANT? while party leaders exercise great control over party platforms, the party message,

candidate funding, who holds elected office, and who wins the nomination for presi-

dent, many aspects of party politics have been turned upside-down with the digital

revolution in communication and by “outsider” candidates running for president who

have exploited digital platforms to advance their campaigns. Four resources that

political parties use to contest and win elections (time, money, expertise, and

organization) have all been altered by the internet. New media are decentralizing party

power as citizens like Keli Carender (described at the beginning of this chapter) can

volunteer, communicate, and give money to the party of their choice or even start their

own group without ever being contacted by a party official. Online fund-raising allows

millions of donors to give small contributions to parties, and new media allow the party

to spread its message far and wide online. This is beneficial for parties because more

people are involved, but there are more divergent opinions that must be recognized

and appeased. At the same time, huge contributions from a handful of very wealthy

individuals have increased. will the ability of the mass public to make their desires

known to party leaders mean that party leaders pay more attention to these prefer-

ences? Is the two-party system the optimal system for American politics, or should

electoral reforms encourage more parties to form and, hence, provide more choice

for voters?

The important role played by private funds in American elections affects the bal-

ance of power among contending economic groups. Politicians need large amounts of

money to campaign successfully for major offices. This fact inevitably ties their inter-

ests to the interests of the groups and forces that can provide this money: the affluent.

In a nation as large and diverse as the United States, to be sure, campaign contribu-

tors represent many different groups and, often, clashing interests. The fact remains,

however, that those with more money will be able to give more and speak with a louder

voice. Since 2000 a series of highly competitive presidential elections has spurred

political campaigns to pay more attention to drawing greater numbers of voters from

a variety of backgrounds into the political process; even so, many Americans still do

not participate in politics. The “Who Participates?” feature shows who participated in

the 2016 election.

240 CHAPTER 7 POL I T ICAL PART IES , PART IC IPAT ION , AND ELECT IONS

wtp12e_ess_ptr_ch07_204-245.indd 240 11/28/18 5:55 PM

14.3% 11.0% 12.2% 13.3% Displayed a campaign button, lawn sign, or bumper sticker

Gave money to a candidate, party, or other group

Talked about voting for or against a candidate or party

Went to political meetings, rallies, or speeches

Voted

Percentage of each age group who…

SOURCE: American National Election Study, 2016 Time Series, www.electionstudies.org (accessed 12/20/17).

18–24 45–6425–44 65+Age group

46.2% 45.3% 52.6% 54.4%

10.8% 20.1%7.1%6.7%

70.4% 88.6% 93.9%82.3%

8.0%9.4% 6.3% 6.3%

Who Participated in the 2016 Presidential Election?

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

WHO PARTICIPATES?

wtp12e_ess_ptr_ch07_204-245.indd 241 11/28/18 5:55 PM

Practice Quiz

1. A political party is different from an interest group in that a political party (p. 207) a) seeks to control the government

by nominating candidates and electing its members to office.

b) is constitutionally exempt from taxation.

c) is entirely nonprofit. d) has a much larger membership. e) has a much smaller membership.

2. which party was formed in the 1830s in opposition to Andrew Jackson’s presidency? (p. 211) a) American Independent b) Federalist c) Jacksonian Republican

d) Democratic e) whig

3. The so-called New Deal coalition was severely strained (p. 215) a) during the 1860s by conflicts over

slavery and southern secession. b) during the 1890s by conflicts over

the gold standard. c) during the 1930s by conflicts

over the Great Depression and America’s involvement in world war II.

d) during the 1960s by conflicts over civil rights and the Vietnam war.

e) during the 1990s by conflicts over abortion and affirmative action.

In most states you can register to vote using the National Mail Voter Registration Form found at www.eac.gov. The Election Assistance Commission website also includes various tips about registering and voting.

Many states allow online registration. Go to www.ncsl.org and search "online voter registration" to �nd a list of these states with links to their websites.

Register to Vote

Find out when you need to register in order to vote in the next election. Visit www.usa.gov/register-to-vote for a list of registration deadlines.

If you’ve moved to attend college or for another reason, you can register with your new address.

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

242 STUDY GU IDE

wtp12e_ess_ptr_ch07_204-245.indd 242 11/28/18 5:55 PM

4. The periodic episodes in American history in which an “old” dominant political party is replaced by a “new” dominant political party are called (p. 217) a) constitutional revolutions. b) divided governments. c) unified governments. d) dealignments. e) electoral realignments.

5. In a __________ electoral system, political parties are awarded legislat- ive seats in rough approximation to the percentage of popular votes that each party wins. (p. 219) a) plurality b) proportional representation c) split-ticket d) straight-ticket e) open primary

6. which of the following factors is not currently an obstacle to voting in the United States? (p. 225) a) registration requirements b) that elections occur on weekdays c) the restriction of voting rights for

people who have committed a felony d) literacy tests e) voter identification laws

7. An open primary is a primary election in which (p. 230) a) one’s vote is made public. b) only registered members of the

party may vote. c) all registered voters are allowed to

choose on the day of the primary which party’s primary they will participate in.

d) there are no limits on campaign spending.

e) only superdelegates are allowed to vote.

8. If a state has 10 members in the U.S. House of Representatives, how many votes in the electoral college does that state have? (p. 231) a) 2 b) 10 c) 12 d) 20 e) The number of votes cannot be

determined from this information.

9. The main difference between a 527 committee and a 501(c)(4) is that (p. 237) a) a 527 is not legally required to

disclose where it gets its money, while a 501(c)(4) is legally required to do so.

b) a 501(c)(4) is not legally required to disclose where it gets its money, while a 527 is legally required to do so.

c) a 527 can only contribute to one campaign, while a 501(c)(4) can contribute to many.

d) a 501(c)(4) can only contribute to one campaign, while a 527 can contribute to many.

e) a 527 can legally coordinate its spending with a candidate’s campaign, while a 501(c)(4) cannot.

10. Public funding of presidential campaigns was (p. 238) a) outlawed by the Federal Election

Campaign Act. b) declared unconstitutional by the

Supreme Court in McCutcheon et al. v. Federal Election Commission.

c) accepted by both major-party presidential candidates in 2016.

d) rejected by all four major-party presidential candidates in 2012 and 2016.

e) limited to only $25 million in 2008, 2012 and 2016.

11. In Buckley v. Valeo, the Supreme Court ruled that (p. 239) a) PAC donations to campaigns are

constitutionally protected. b) candidates cannot spend

any of their own money to run for office.

c) the right of individuals to spend their own money to campaign is constitutionally protected.

d) there is no limit to the number of candidates that an individual can contribute money to.

e) the Bipartisan Campaign Reform Act is unconstitutional.

243STUDY GU IDE

wtp12e_ess_ptr_ch07_204-245.indd 243 11/28/18 5:55 PM

Key Terms

ballot initiative (p. 230) a proposed law or policy change that is placed on the ballot by citizens or interest groups for a popular vote

caucus (political) (p. 230) a normally closed political party business meeting of citizens to select candidates, elect officers, plan strategy, or make decisions regarding legislative matters

closed primary (p. 230) a primary election in which voters can participate in the nomination of candidates but only of the party in which they are enrolled for a period of time prior to primary day

divided government (p. 218) the condition in American government wherein the presi dency is controlled by one party while the opposing party controls one or both houses of Congress

electoral college (p. 231) the electors from each state who meet after the popular election to cast ballots for president and vice president

electoral realignment (p. 217) the point in history when a new party supplants the ruling party, becoming in turn the dominant political force

501(c)(4)s (dark money) (p. 237) politically active nonprofits; under federal law, these nonprofits can spend unlimited amounts on political campaigns and not disclose their donors as long as their activities are not coordinated with the candidate campaigns and political activities are not their primary purpose

527 committees (Super PACs) (p. 237) non- profit independent groups that receive and disburse funds to influence the nomination, election, or defeat of candidates; named after Section 527 of the Internal Revenue Code, which defines and provides tax-exempt status for nonprofit advocacy groups

general election (p. 230) a regularly sched- uled election involving most districts in the nation or state, in which voters decide who wins office; in the United States, general

elections for national office and most state and local offices are held on the first Tuesday following the first Monday in November in even-numbered years (every four years for presidential elections)

incumbent (p. 208) a candidate running for re-election to a position that he or she already holds

majority party (p. 210) the party that holds the majority of legislative seats in either the House or the Senate

micro-targeting (p. 210) when political campaigns tailor messages to individuals in small homogenous groups based on their group interests to support a candidate or policy issue

minority party (p. 210) the party that holds the minority of legislative seats in either the House or the Senate

mobilization (p. 224) the process by which large numbers of people are organized for a political activity

nomination (p. 208) the process by which political parties select their candidates for election to public office

open primary (p. 230) a primary election in which the voter can wait until the day of the primary to choose which party to enroll in to select candidates for the general election

party identification (p. 220) an individual voter’s psychological ties to one party or another

political action committee (PAC) (p. 208) a private group that raises and distributes funds for use in election campaigns

political parties (p. 207) organized groups that attempt to influence the government by electing their members to important government offices

primary elections (p. 229) elections within a political party to select the party’s candid- ate for the general election

244 STUDY GU IDE

wtp12e_ess_ptr_ch07_204-245.indd 244 11/28/18 5:55 PM

Aldrich, John H., et al. Change and Continuity in the 2016 Elections, washington, DC: CQ Press, 2018.

Brewer, Mark D., and L. Sandy Maisel. Parties and Elections in America. 7th ed. Lanham, MD: Rowman & Littlefield, 2015.

Cohen, Marty, David Karol, Hans Noel, and John Zaller. The Party Decides: Presidential Nominations before and after Reform. Chicago: University of Chicago Press, 2008.

Ginsberg, Benjamin, and Martin Shefter. Politics by Other Means: Institutional Conflict and the Declining Significance of Elections in America. New York: w. w. Norton, 1999.

Maisel, L. Sandy. Political Parties and Elections: A Very Short Introduction. New York: Oxford University Press, 2007.

McCarty, Nolan, Keith Poole, and Howard Rosenthal. Polarized America: The Dance of Ideology and Unequal Riches. Cambridge, MA: MIT Press, 2006.

Milkis, Sidney. The President and the Parties: The Transformation of the American Party System since the New Deal. New York: Oxford University Press, 1993.

Patterson, Thomas E. The Vanishing Voter: Public Involvement in an Age of Uncertainty. New York: Vintage Books, 2003.

wayne, Stephen. Is This Any Way to Run a Democratic Election? 6th ed. New York: Routledge, 2018.

west, Darrell. The Next Wave. washington, DC: Brookings Institution Press, 2011.

For Further Reading

proportional representation (p. 219) a multiple-member district system in which many competing political parties are awarded legislative seats in rough propor- tion to the percentage of popular votes that each party wins.

recall (p. 231) a procedure to allow voters to remove state officials from office before their terms expire by circulating petitions to call a vote

referendum (p. 231) the practice of refer- ring a measure proposed or passed by a legislature to the vote of the electorate for approval or rejection

socioeconomic status (p. 224) status in society based on level of education, income, and occupational prestige

suffrage (p. 223) the right to vote; also called franchise

third parties (p. 218) parties that organize to compete against the two major American political parties

turnout (p. 223) the percentage of eligible individuals who actually vote

two-party system (p. 210) a political system in which only two parties have a realistic opportunity to compete effectively for control of the government

245STUDY GU IDE

wtp12e_ess_ptr_ch07_204-245.indd 245 11/28/18 5:55 PM

Interest Groups WHAT GOVERNMENT DOES AND WHY IT MATTERS After graduating from college with a degree in physics, 25-year-old Ben Brown was

working in New York City in the energy business when he read a news-

paper article quoting former senator Alan Simpson, Republican of Wyoming.

Simpson asserted that young people would lack political power until a young

person “could walk into his office and say, ‘I’m from the American Associa-

tion of Young People. We have 30 million members, and we’re watching you,

Simpson.’”1 He was referencing the political clout of AARP, formerly known as

the American Association of Retired Persons, the largest membership orga-

nization in the country. AARP is known for its formidable defense of Social

Security, Medicare, and other issues of interest to older Americans.

In contrast, young Americans have not had a broad-based membership

group representing their interests, and in 2016 Brown decided to found one.

Individuals can join the Association of Young Americans for $20 per year and

enjoy discounts on transportation and movies, much as AARP members have

long enjoyed travel and insurance services. While those benefits are intended

080808 chapter

wtp12e_ess_ptr_ch08_246-273.indd 246 11/28/18 4:30 PM

Interest Groups Interest groups have a strong influence in American political life, but whose interests do these groups serve? Young people have struggled to have a strong voice in politics, but Ben Brown founded the Association for Young Americans to change that.

to entice members, the real purpose of AYA is to lobby on issues such as

preserving net neutrality, stopping unpaid internships, and protecting student

debt repayment programs. The organization has a weekly newsletter and pro-

vides a “Contact Our Reps” tool to “make it easy for anyone to connect with

their elected officials” and make their preferences known. “We work to insert

the voices of the 80 million Americans ages 18 to 35 into everyday politics,”

the group’s website says.2

Tens of thousands of organized groups have formed in the United States,

ranging from civic associations to huge nationwide organizations such as the

National Rifle Association (NRA), whose chief cause is opposition to restrictions

on gun ownership, and Common Cause, a public interest group that advocates for

such issues as limits on campaign spending. Despite the array of interest groups

in American politics, however, not all interests—like those of young people—

are represented equally, and the results of competition among various interests

are not always consistent with the common good. Indeed, Alexis de Tocqueville,

a famous nineteenth-century French writer, once wrote that America was “a

247

wtp12e_ess_ptr_ch08_246-273.indd 247 11/28/18 4:30 PM

★ Describe the major types of interest groups and whom they represent (pp. 249–54)

★ Describe how groups organize (pp. 254–58)

★ Analyze why the number of interest and advocacy groups has grown in recent decades (pp. 258–59)

★ Explain how interest groups try to influence government (pp. 259–67)

CHAPTER GOALS

nation of joiners.”3 This defining characteristic of American political life has not

changed since Tocqueville made his observation. Americans are much more

likely to join political and social organizations than people in other countries, and

America has more organized interest groups than other nations.

Many believe this unique trend has a positive impact on democracy. But

others worry that the power and money wielded by these groups can dominate

Congress, the president, and the political process—such as elections—at the

expense of average citizens and the public welfare. Another concern is that

despite the array of interest groups in American politics, not all interests—like

those of young people—are represented equally, and the results of competition

among various interests are not always consistent with the common good. In

this chapter we will examine the nature and consequences of interest group

politics in the United States.

248 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 248 11/28/18 4:30 PM

Interest Groups Form to Advocate for Different Interests

The framers of the U.S. Constitu- tion fear ed the po wer that could be wielded by organized interests. Yet they believ ed that inter est gr oups

thrived because of liber ty—the freedom that all Americans hav e to organiz e and express their vie ws. In the eighteenth and nineteenth centuries, organiz ed groups were called “ associations.” The Federalists and the Antifederalists themselv es were organized gr oups of political elites that had different vie ws about ho w to cr eate America’s new democracy. Both the Federalists and Antifederalists agreed that if the government were given the power to regulate, restrict, or forbid efforts by organized interests to impose themselv es in the political pr ocess, it would in effect have the power to suppress individual liberty. The solution to this dilemma was presented by James Madison in the Federalist Papers, no. 10:

Take in a greater variety of parties and interests [and] you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens. . . . [Hence the advantage] enjoyed by a large over a small republic.4

According to the M adisonian theor y, a good go vernment encourages multi - tudes of interests so that no single inter est can ever dominate the others. The basic assumption is that many competing interests will regulate one another, producing a kind of balance. 5 Today, this Madisonian principle of regulation is called pluralism. According to pluralist theor y, all inter ests are and should be fr ee to compete for political influence. While an interest group may lose on one issue, it may win on the next; and o verall the majority of society will be r epresented in go vernment. Moreover, according to the theory of pluralism, the outcome of this competition is compromise and moderation since no group is likely to be able to achieve any of its goals without accommodating itself to some of the vie ws of its many competitors.6 Another assumption of pluralism is that all groups have equal access to the political process and that achieving an outcome favorable to a particular group depends only upon that group’s strength and resources, not upon biases inher ent in the political system. But, as we shall see, group politics has worked and continues to work more to the advantage of some types of interests than others.

Critics of pluralism point out that not all inter ests ar e equally r epresented in the competition for political influence. Some interests speak with loud v oices (for example, large corporations), while others can bar ely make themselv es heard (for example, Midwest farmers). Pluralism does not guarantee political equality. Indeed, important research indicates that economic elites have considerably more influence than mass-based forces in the American political pr ocess. This version of pluralism is called elite pluralism and more accurately describes American politics.

An interest group is a group of individuals who organiz e to influence the govern- ment’s programs and policies. This definition includes membership organizations

Describe the major types of interest groups and whom they represent

249I NTeReST GROUPS FORM TO ADvOCATe FOR D I F FeReNT INTeReSTS

wtp12e_ess_ptr_ch08_246-273.indd 249 11/28/18 4:30 PM

composed of av erage citizens but also businesses, corporations, labor unions, uni - versities, and other institutions that restrict membership to particular occupational groups or other categories of persons. I ndividuals form groups in order to increase the chance that their vie ws will be hear d and their inter ests tr eated favorably by the government.

Interest groups are sometimes referred to as “lobbies” or “special interests.” They are also sometimes confused with political action committees (PACs), which are private groups that raise and distribute funds for use in election campaigns. M any interest groups create PACs in their name to be the money-giving arm of the interest group. The purpose of PACs is to influence elections rather than to influence the elected. Another distinction is that inter est groups are also different from political par ties: interest groups tend to focus on the policies of government; parties tend to con- cern themselves with the personnel of go vernment. Parties organize to win elected office and interest groups do not, although interest groups are increasingly engaged in political campaigns and seek to help candidates supportive of their policy goals win elections.

WHAT INTERESTS ARE REPRESENTED?

Economic Groups Interest groups come in as many shapes and siz es as the inter - ests they represent. The most obvious are groups with a direct economic interest in government policy. Businesses and corporations make up over a third of those with lobbying offices in Washington; trade associations comprise another 23 percent and labor unions just 2 per cent of gr oups r egistered to lobb y.7 Trade associations ar e generally supported by groups of pr oducers or manufactur ers in a par ticular eco- nomic sector, such as the N ational Association of M anufacturers and the American Farm Bureau Federation. Combined, over 6 in 10 groups lobbying in Washington represent businesses, corporations, or trade associations. Trade associations spent more than $716 million to lobb y the federal go vernment and Congr ess in 2017. 8 Some of the biggest spenders included the U.S. Chamber of Commerce, Blue Cross Blue Shield, the American Medical Association, Boeing, and AT&T.

Labor Groups Labor organizations ar e also activ e in lobb ying go vernment. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the United Mine Workers, and the Teamsters are all gr oups that lobb y on behalf of organized labor. Other groups have organized to fur ther the inter ests of public employees, such as the American F ederation of S tate, County and M unicipal Employees, which has 1.4 million members. H owever, as mentioned abo ve, labor unions represent just 2 per cent of the total number of r egistered lobby groups in Washington.9 Despite being out-lobbied, labor unions continue to exercise influence in Washington. Union members v ote, and organiz ed labor can hav e a significant impact on elections.

Professional Associations Professional lobbies such as the American B ar Asso- ciation and the American M edical Association have been par ticularly successful at

250 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 250 11/28/18 4:30 PM

furthering their members’ interests in Congress and state legislatures. Accountants, real estate agents, dentists, teachers, and even college faculty have professional asso- ciations. Financial institutions, represented by organizations such as the American Bankers Association and the National Savings and Loan League, although often less visible than other lobbies, also play an impor tant role in shaping legislativ e policy. These groups comprise just over 10 percent of all lobby groups in Washington.

Public Interest Groups Recent years have witnessed the gr owth of a po werful “public interest” lobby, purporting to r epresent the general good rather than its own economic inter ests. Public interest groups have been most visible in the con - sumer protection and environmental policy areas, although public interest groups cover a broad range of issues. The Natural Resources Defense Council, the Sierra Club, and Common Cause ar e all examples of citiz en gr oups. Citiz en gr oups comprise 20 per cent of gr oups with lobb ying offices in Washington. Claims to represent only the public interest should be viewed with caution, however: it is not uncommon to find decidedly private interests hiding behind the term public interest. F or example, the benign-sounding P artnership to P rotect Consumer Credit is a coalition of cr edit card companies fighting for less federal regulation of credit abuses.10

Ideological Groups Closely r elated to and overlapping public interest groups are ideological groups, organized in support of a particular political or philosophical

Although public school teachers are a minority of the total population, they are an influential interest group in many states because they are highly informed and act as a group in support of issues related to their profession, including teachers’ salaries.

251I NTeReST GROUPS FORM TO ADvOCATe FOR D I F FeReNT INTeReSTS

wtp12e_ess_ptr_ch08_246-273.indd 251 11/28/18 4:30 PM

Civil Society around the World Political scientists who study democracy around the world emphasize the important role society may play in shaping democracy. Interest groups are part of what is known more broadly as civil society: organizations outside the state that help people define and promote their interests. These groups play an important role in maintaining the overall health of democracy. Countries with an active civil society may be more likely to transition to democracy. South Africa’s strong civil

society played a major role in protesting for democracy against a repressive Apartheid regime. In contrast, civil society membership was heavily co-opted by authoritarian regimes in Germany and Japan; rebuilding the independence and engagement of these groups remains a major democratic challenge to this day. So, while de Tocqueville may have been writing about the United States as a “nation of joiners,” many other democracies have also joined this club.

SOURCE: R. Inglehart et al., eds., “World Values Survey: Round Six—Country-Pooled Datafile Version,” 2014, www .worldvaluessurvey.org (accessed 5/28/18).

2

1%

1 4

4

4%

7

7 7

7

9 10

12

13 35

56

5%

5

Japan

South Africa

United States

1% 6

2 8

7 50

0% 3

3%

2 4

8

6 5 6

8

14

14

Brazil

Germany

India

PERCENTAGE OF POPULATION THAT REPORTS AS ACTIVE MEMBERS OF INTEREST GROUPS

Consumer organization Professional association

Labor union

Environmental organization

Art, music, or educational organization

Church or religious organization

wtp12e_ess_ptr_ch08_246-273.indd 252 11/28/18 4:30 PM

perspective. The National Right to Life Committee and the Christian Coali - tion focus on conser vative social goals, such as opposing abor tion. The National Taxpayers Union and Americans for Tax Reform campaign to reduce the size of the federal government. Liberal-leaning groups, including EMILY’s List and MoveOn. org, suppor t causes such as pr otecting national par ks and public lands, climate action, free college, and increasing the minimum wage.

Public-Sector Groups The perceived need for r epresentation on Capitol H ill has generated a public-sector lobb y in the past sev eral y ears, including the N ational League of Cities, the National Conference on State Legislatures, and the “research” lobby. This latter group includes universities and think tanks that have an interest in obtaining government funds for research and support, such as H arvard University and the American Enterprise Institute. These groups represent about 10 percent of Washington lobby groups.

SOME INTERESTS ARE NOT REPRESENTED

It is difficult to categorize unrepresented interests precisely because they are not organized and ar e not able to pr esent to go vernments their identity and their demands. The political scientist David Truman referred to these interests as “poten- tial interest groups.”11 He is undoubtedly correct that at any time, as long as there is freedom, it is possible that any interest shared by a lot of people can develop through “voluntary association” into a genuine inter est group that can demand some r ep- resentation. But the fact remains that many interests—including some very widely shared interests—do not get organiz ed and r ecognized. Two such gr oups are the homeless and the poor.12 Both groups have shared interests in policy outcomes, such as job programs and affordable housing, but lack organization through which to push for government policy to address these concerns.13

GROUP MEMBERSHIP HAS AN UPPER-CLASS BIAS

Despite the benefits of interest groups in terms of mobilizing and educating the public and the arguments in favor of pluralism, there are concerns about the influ- ence of special inter ests in the U nited S tates. O ne long-standing critic is E. E. Schattschneider, who argued in a famous quote that “the flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent.”14 Critics contend that interest group politics is heavily ske wed in fav or of corporate, business, and upper-class gr oups, leaving those with lo wer socioeconomic status less able to participate in and influence politics.

This is because people with higher incomes, more education, and management or professional occupations are much more likely to become members of groups than those who occupy the lo wer r ungs on the socioeconomic ladder .15 Well- educated, upper-income business- and professional people are more likely to have the time, money, information, and skills that ar e needed to play a r ole in a group or association. M oreover, for business- and pr ofessional people, gr oup

253I NTeReST GROUPS FORM TO ADvOCATe FOR D I F FeReNT INTeReSTS

wtp12e_ess_ptr_ch08_246-273.indd 253 11/28/18 4:30 PM

membership may pr ovide personal contacts and access to information that can help advance their careers. At the same time, of course, corporations and businesses usually have ample resources to form or participate in groups that seek to advance their interests.

The result of this elitist tendency is that inter est group politics in the U nited States has a v ery pronounced class bias. Cer tainly, there are many inter est groups and political associations that hav e a wor king- or lo wer-class membership (labor organizations or welfare rights organizations, for example), but the great majority of interest group members are drawn from the middle and upper-middle classes. Even when interest groups take opposing positions on issues and policies, the conflicting positions they take on policy issues usually r eflect divisions among upper-income strata rather than conflicts between the upper and lower classes. Many policy issues critical to wor king and middle-class people—quality public education, efficient transportation, affordable housing, safe neighborhoods—are often ignored by government. Thus, when the political system is run by interest groups, democracy will be unequal and many issues important to average Americans will be ignored.

The Organizational Components of Groups Include Money, Offices, and Members

Although inter est gr oups ar e many and v aried, most shar e cer tain key organizational components. These

include leadership, money, an agency or office, and members. Leadership and decision-making str ucture is vital for gr oup organization. F or

some gr oups, this str ucture is v ery simple. F or others, it can be quite elaborate and involve hundreds of local chapters that ar e melded into a national apparatus. Political entr epreneurs initially organiz e and lead gr oups. Later, these leaders ar e replaced by a paid professional staff. For example, MoveOn.org initially formed in 1998 as an email gr oup by software entrepreneurs Joan Blades and Wes Boyd to oppose the impeachment of P resident Bill Clinton. Beginning as a ragtag band of liberal activists, MoveOn.org in the past two decades has raised millions of dollars for candidates and progressive policy issues such as legislation pr otecting consumers, the envir onment, immigrants, and the wor king class. Today M oveOn.org has millions of members and 250 local chapters in every state.

Today every group needs a social media strategy . Both progressive and conserv- ative online adv ocacy gr oups often hav e a str eamlined staff structure with little bureaucracy. As computer scientist Clay S hirky explains in Here Comes Everybody, the internet has given rise to a proliferation of online organizations without formal organizing structures.16 Examples include Wikipedia, whose content is provided by volunteers from around the world. But the real impact of the digital media r evolu- tion is the adv ent of new forms of organization. Leadership r emains a priority for online organizations. Entrepreneurship and leadership are important for all interest

Describe how groups organize

254 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 254 11/28/18 4:30 PM

groups but especially so for those with little staff and formal organization as the leader holds the organization together.

A second key organizational component of inter est groups is a financial structure capable of sustaining an organization and funding the gr oup’s activities, although the costs of maintaining an online organization are lower. Most interest groups rely on mem- bership dues and voluntary contributions from sympathizers. Many also sell services or benefits to members, such as insurance and vacation tours. I n addition, most gr oups establish an agency that carries out the group’s tasks, which may be a research organiza- tion, a public-relations office, or a lobbying office in Washington or a state capital.

Finally, all inter est groups must attract and keep members. S omehow, groups must persuade individuals to inv est the money, time, energy, or effort required to take part in the group’s activities. Members play a larger role in some groups than in others. In membership associations, group members play a substantial role, serving on committees and engaging in gr oup projects. In the case of labor unions, members pay dues and may march on picket lines; and in the case of political or ideological groups, members may participate in demonstrations and protests. In another set of groups, staff organizations, a professional staff conducts most of the group’s activities. Members are called upon only to pay dues and make other contributions. Among well-known public inter est gr oups, some, such as the N ational O rganization for Women (NOW), are membership groups, whereas others, such as Defenders of Wildlife and the Children’s Defense Fund, are staff organizations.

The “Free-Rider” Problem Whether they need individuals to volunteer or merely to write checks, inter est gr oups need to r ecruit and r etain members. Yet many groups find this task difficult, even when it comes to recruiting members who agree strongly with the group’s goals. Why? As economist Mancur Olson explains, the benefits of a group’s success are often broadly available and cannot be denied to nonmembers.17 Such benefits are called collective goods. Following Olson’s own example, suppose a number of private property owners live near a mosquito- infested swamp. Each owner wants this swamp cleared. But if only a few of the own- ers were to clear the swamp, their actions would benefit all the other owners as well, without any effort on the par t of those other o wners. Each of the inactiv e owners would be a free rider on the efforts of the ones who clear ed the swamp; they would enjoy the benefits of collective goods but without having par ticipated in acquiring them. Thus, there is a disincentive for any of the owners to undertake the job alone.

Since the number of concerned owners is small in this particular case, they might eventually be able to organiz e themselv es to shar e the costs as w ell as enjo y the benefits of clearing the swamp. B ut suppose the number of inter ested people increases. S uppose the common concern is not the neighborhood swamp but polluted air or groundwater involving thousands of residents in a region or millions of residents in a whole nation. National defense is the most obvious collective good whose benefits are shared by all residents, regardless of the taxes they pay or the sup- port they provide. As the size of the group increases, the free-rider problem becomes greater. Individuals do not hav e much incentiv e to become activ e members and supporters of a group if they are already benefiting from the group’s activities.

255THe ORGAN IZAT IONAL COMPONeNTS OF GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 255 11/28/18 4:30 PM

Why Join Groups? To o vercome the fr ee-rider pr oblem, inter est gr oups offer numerous incentives to join. Most important, they make “selective benefits” avail- able only to gr oup members. These benefits can be information-related, material, solidary, or purposive—or a combination of benefits. Table 8.1 gives some examples of the range of benefits in each of these categories.

Informational benefits are the most widespread and important category of selective benefits offered to gr oup members. I nformation is pr ovided through conferences, training programs, online communications, ne wsletters, and other periodicals sent automatically to those who have paid membership dues.

Material benefits include anything that can be measured monetarily, such as special goods, services, and ev en money, provided to members of gr oups to entice others to join. These benefits often include discount purchasing, shared advertising, and, perhaps most valuable of all, health and retirement insurance.

Another option identified in Table 8.1 is that of solidary benefits. These are selective benefits of group membership that include friendship , networking, and consciousness-raising, which pr ovide the satisfaction of wor king toward a com - mon goal with like-minded individuals. O ne example of the latter ar e the claims of many women’s organizations that activ e participation conveys to each female

CATEGORY BENEFITS

Informational benefits Conferences Professional contacts Training programs Publications Coordination among organizations Research Legal help Professional codes Collective bargaining

Material benefits Travel packages Insurance Discounts on consumer goods

Solidary benefits Friendship Networking opportunities

Purposive benefits Advocacy Representation before government Participation in public affairs

SOURCE: Adapted from Jack Walker, Jr., Mobilizing Interest Groups in America: Patrons, Professions, and Social Movements (Ann Arbor: University of Michigan Press, 1991), 86.

TABLE 8.1

Selective Benefits of Interest Group Membership

256 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 256 11/28/18 4:30 PM

member of the organization an enhanced sense of her o wn value and a str onger ability to advance individual as well as collective rights. Members of associations based on ethnicity , race, or r eligion also deriv e solidar y benefits from interact - ing with individuals they per ceive as sharing their o wn backgrounds, values, and perspectives.

A fourth type of benefit involves the appeal of the purpose of an inter est group. These purposive benefits emphasize the purpose and accomplishments of the gr oup. For example, people join religious, consumer, environmental, or other civic groups to pursue goals important to them.

Many of the most successful inter est gr oups of the past 20 y ears hav e been citizen groups or public interest groups, whose members are brought together largely around shared ideological goals, including go vernment reform, election and cam - paign reform, civil rights, economic equality , “family values,” and even opposition to government itself.

AARP and the Benefits of Membership One gr oup that has been extr emely successful in recruiting members and mobilizing them for political action is AARP (formerly called the American Association of R etired Persons). AARP was founded in 1958 as a result of the efforts of a retired California high school principal, Ethel Percy Andrus, to find affordable health insurance for herself and the thousands of members of the National Retired Teachers Association.

Today, AARP is a large and po werful organization with 38 million members and an annual income of $900 million. I n addition, the organization r eceives $90 million in federal grants. Its national headquarters in Washington, D.C., staffed by nearly 3,000 full-time employees, is so large that it has its own zip code.

How did this large organization o vercome the fr ee-rider problem and r ecruit 38 million older people as members? F irst, no other organization has ev er pro- vided more successfully the selectiv e benefits necessary to overcome the free-rider problem. It helps that AARP began as an organization to provide affordable health insurance for aging members rather than as an organization to influence public policy. But that fact only strengthens the argument that members need short-term individual benefits if they are to invest effort in a longer-term and less concrete set of benefits. As AARP evolved into a political interest group, its leadership added more selectiv e benefits for members. They provided guidance against consumer fraud, offered low-interest credit cards, evaluated and endorsed products that were deemed of best v alue to members, and pr ovided auto insurance and a discounted mail-order pharmacy. The membership fee is only $16 (or less with a multi-year membership).

THE INTERNET HAS CHANGED THE WAY INTEREST GROUPS FOSTER PARTICIPATION

Digital communication is changing ho w inter est gr oups foster par ticipation in politics and sustained collectiv e action b y citiz ens. F or example, liberal-leaning MoveOn.org and conser vative-leaning Americans for P rosperity hav e arisen o ver

257THe ORGAN IZAT IONAL COMPONeNTS OF GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 257 11/28/18 4:30 PM

the past two decades to play an increasingly important role in citizen participation in politics. These grassroots online activist organizations have redefined membership and fund-raising practices via innovative methods for communicating with their members, measuring the opinions of their members, and mo ving their members into action—in terms of both influencing public opinion and working on behalf of the organization.

Traditional interest groups are expensive to organize (which is one reason group membership has an upper-class bias), and they rely on professional advocates and direct mail. They are also slow to change. By contrast, today’s advocacy groups are quick to adapt to an ev er-changing world of politics and hav e lower costs than traditional inter est groups because they hav e fe wer staff, who often work from virtual offices. This less expensive staff structure engages in different work routines that prioritize communication with members thr ough email, Twitter, and other digital platforms.

Today’s advocacy groups employ grassroots strategies to pr essure elected offi- cials, including using social media to organiz e rallies, and generate ne ws head - lines, fund-raising events, letter-writing campaigns, bo ycotts, and protests. In the aftermath of a mass shooting at a high school in P arkland, Florida, in F ebruary 2018, for example, students there used social media, including Twitter, Instagram, Facebook, and S napchat, to mobiliz e Americans acr oss the nation in suppor t of stronger gun laws. U nder the label “M arch for O ur Liv es,” these students suc - cessfully coordinated a mass rally in Washington, D.C., and subsequent rallies around the country. Largely as a result of their efforts, and those of supporters they attracted, several states enacted tougher gun laws. 18 Online advocacy groups may improve representation for citiz ens, counteracting the dispr oportionate influence of business and corporate inter ests in Washington. Both liberal and conser vative groups alike, as well as economic interest groups, have been better able to organize and affect government policy in the past decade with the help of the internet and social media.

The Number of Groups Has Increased in Recent Decades

Over the past sev eral decades, ther e has been an enormous incr ease both in the number of inter est gr oups seeking to play a role in the American political process and in the extent of

their influence over that pr ocess. This explosion of interest group activity has two basic origins: first, the expansion of the role of go vernment during this period and, second, the coming-of-age of a ne w dynamic set of political for ces in the United States—forces that have relied heavily on public interest groups to advance their causes.

Analyze why the number of interest and advocacy groups has grown in recent decades

258 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 258 11/28/18 4:30 PM

THE EXPANSION OF GOVERNMENT HAS SPURRED THE GROWTH OF GROUPS

Modern governments’ extensive economic and social programs have powerful polit- icizing effects, often sparking the organization of new groups and interests. In other words, interest groups often form as the r esult of, or in r esponse to, go vernment actions, rather than groups pressing the government to take on new responsibilities. For example, during the 1970s, expanded federal regulation of the automobile, oil, gas, education, and health care industries impelled each of these interests to increase substantially its efforts to influence the government’s behavior. These efforts, in turn, spurred the organization of other groups, either to support or to oppose the activities of the first.19 Similarly, federal social pr ograms have sparked political organization and action b y affected groups. For example, federal pr ograms and cour t decisions in such areas as abortion, school prayer, and same-sex marriage helped spur the rise of fundamentalist r eligious groups. Thus, the expansion of government in r ecent decades has also stimulated increased group activity and organization.

PUBLIC INTEREST GROUPS GREW IN THE 1960S AND ’70S

The second factor accounting for the explosion of interest group activity was the emergence of a new set of forces in American politics that can collectively be called the “New Politics” movement.

The New Politics movement is made up of upper-middle-class pr ofessionals and intel- lectuals for whom the civil rights and anti–Vietnam War movements of the 1960s were formative experiences. The crusade against racial discrimination and the Vietnam War led these young men and women to see themselv es as a political for ce, focusing their attention on such issues as environmental protection, women’s rights, and nuclear dis- armament. In recent years, these citizens have focused attention on issues such as envi- ronmental protection, economic inequality, and rights for the LGBTQ community.

Members of the New Politics movement founded or bolstered public interest groups such as Common Cause, the Sierra Club, the Environmental Defense Fund, Physicians for Social Responsibility, NOW, and the v arious organizations formed b y consumer activist Ralph Nader. Through these groups, New Politics forces were able to influence the media, Congress, and the courts, and enjoyed a remarkable degree of success, play- ing a major role in gaining the passage of environmental, consumer, and occupational health and safety legislation. Today, the internet and digital platforms, including social media and blogs, reduce the cost and increase the reach of organizing activities.

Interest Groups Use Different Strategies to Gain Influence

As w e hav e seen, inter est gr oups work to improve the likelihood that their inter ests will be hear d and treated favorably by the go vernment.

Explain how interest groups try to influence government

259I NTeReST GROUPS USe D I F FeReNT STRATeG IeS TO GA IN INFLUeNCe

wtp12e_ess_ptr_ch08_246-273.indd 259 11/28/18 4:30 PM

The quest for political influence or power takes many forms, but among the most frequently used strategies or “ tactics of influence” (see F igure 8.1) ar e lobb y- ing, gaining access to key decision makers, using the cour ts, mobilizing public opinion, and using electoral politics. M any groups employ a mix of insider and outsider strategies.

FIGURE 8.1

How Interest Groups Influence Congress

Activate constituents whose jobs or businesses are affected; provide them with information and arguments; help them organize, write letters, leaflets, etc.

Alliances and logrolls

Media

PAC funds, endorsements, information campaigns,

testimony

Letters, emails, phone calls,

letters to news editors, visits to

Washington, work in elections

Gain access— information, develop personal contacts and ties, favors

Advice

Direct lobbying

Mobilize public opinion— release favorable research findings, news releases, public relations campaigns, tips to reporters

News stories and editorials favorable

to interest group

Congressional staff

Targeted members of Congress

Constituents

Interest group

Other members of Congress

260 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 260 11/28/18 4:30 PM

DIRECT LOBBYING COMBINES EDUCATION, PERSUASION, AND PRESSURE

Lobbying is a strategy b y which organiz ed interests seek to influence the passage of legislation or other public policy b y ex erting dir ect pr essure on members of the legislature. Lobbying encompasses a wide range of activities that gr oups engage in with all sorts of government officials and the public as a whole.

Lobbyists first and foremost pr ovide information to lawmakers about their interests and the legislation at hand.20 They often testify on behalf of their clients at congressional committee and agency hearings. Lobbyists talk to reporters, place ads in newspapers, and organize letter-writing and email campaigns. They also play an important role in fund-raising, helping to direct clients’ contributions to members of Congress and presidential candidates.

Traditionally, the term lobbyist r eferred mainly to individuals who sought to influence the passage of legislation in the Congress. The First Amendment to the Constitution pr ovides for the right to “ petition the G overnment for a r edress of grievances.” But as early as the 1870s, lobbying became the common term for “petitioning.” And since petitioning cannot take place on the floor of the House or Senate, petitioners must confront members of Congress in the lobbies of the legisla- tive chamber—hence the term lobbying. Although interest groups do not necessarily buy votes, they do buy time, expertise, and influence. Studies have found that those interest groups providing the most money to r epresentatives are more likely to be consulted by that representative and asked to provide information and expertise in discussing a bill pertaining to that group’s area of interest. This, in essence, gives interest groups a voice in shaping how legislation is written, and while it cannot ensure votes for laws pr eferred by the group, it is an effective means for organiz ed interests to influence policy.

The influence of lobbyists, in many instances, is based on personal r ela- tionships and the behind-the-scenes ser vices they ar e able to per form for lawmakers. Many of Washington’s top lobb yists have close ties to important members of Congress or are themselves former members of Congress, thus vir- tually guaranteeing that their clients will hav e dir ect access to congr essional leaders.

What happens to interests that do not engage in extensive lobbying? They often find themselves “Microsofted”; that is, marginaliz ed in the political pr ocess. In 1998 the software giant was facing antitrust action from the Justice Department and had few friends in Congress. One member of the House, Representative Billy Tauzin (R-La.), told Microsoft’s chair, Bill Gates, that without an extensiv e invest- ment in lobb ying, the corporation would continue to be “ demonized.” G ates responded by quadrupling Microsoft’s lobbying expenditures and hiring lobbyists with strong ties to Congress. The result was congressional pressure on the Justice Department that led to a settlement of the M icrosoft suit on terms fav orable to the company.21

261I NTeReST GROUPS USe D I F FeReNT STRATeG IeS TO GA IN INFLUeNCe

wtp12e_ess_ptr_ch08_246-273.indd 261 11/28/18 4:30 PM

CULTIVATING ACCESS MEANS GETTING THE ATTENTION OF DECISION MAKERS

In many ar eas, inter est gr oups, go vernment agencies, and congr essional com - mittees routinely work together for mutual benefit. The interest group provides campaign contributions for members of Congr ess, lobbies for larger budgets for the agency, and provides policy expertise to lawmakers. The agency, in turn, pro- vides government contracts for the interest group and constituency services for friendly members of Congr ess. The congressional committee or subcommittee, meanwhile, supports the agency’s budgetary requests and the programs the inter- est group favors. This so-called iron triangle has one angle in an ex ecutive branch program, another angle in a S enate or H ouse legislative committee or subcom - mittee, and a third angle in some highly stable and well-organized interest group. The angles in the triangular relationship are mutually suppor ting, especially if a committee member has seniority in Congress. Figure 8.2 illustrates one of the most impor tant ir on triangles in r ecent American political histor y: that of the defense industry. Iron triangles explain ho w interest groups have influence over

FIGURE 8.2

The Iron Triangle in the Defense Sector Defense contractors are powerful actors in shaping defense policy; they act in concert with defense committees and subcommittees in Congress and executive agencies concerned with defense.

Congress

House National Security and Senate Armed Services committees, and Defense

Appropriations subcommittees; Joint Committee on Defense Production; Joint Economic Committee; House and

Senate members from districts with interests in defense industry

Boeing, Lockheed Martin, Northrop Grumman,

Raytheon, General Dynamics

Executive Agencies

Department of Defense, National Aeronautics and

Space Administration, Department of Energy

Defense Contractors

262 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 262 11/28/18 4:30 PM

both Congress and the go vernment agency dir ectly regulating their inter ests in many policy areas.

A number of impor tant policy domains, such as envir onmental and tax policies, are controlled not by highly structured iron triangles but by a jumble of issue networks. These networks consist of like-minded politicians, consultants, public officials, political activists, and interest groups having some concern with the issue in question. A ctivists and interest groups recognized as being involved in the area (the “stakeholders”) are customarily invited to testify before congres- sional committees or give their views to government agencies considering action in their domain.

Regulating Lobbying Lobbyists’ extensive access to members of Congress has led to repeated calls for reform. In 2007 congressional Democrats secured the enactment of a new package of ethics r ules designed to bring an end to lobb ying abuses. The new rules prohibited lobbyists from paying for most meals, trips, par ties, and gifts for members of Congress. Lobbyists were also required to disclose the amounts and sources of small campaign contributions they collected from clients and “bundled” into large contributions. And inter est groups were required to disclose the funds they used to rally voters to support or oppose legislative proposals. According to the Washington Post, however, within a few weeks lobbyists had learned how to circum- vent many of the new rules, and lobbying firms were as busy as ever.22

USING THE COURTS (LITIGATION) CAN BE HIGHLY EFFECTIVE

Interest groups sometimes turn to litigation when they lack access or when they feel they have insufficient influence to change a law or policy. Interest groups can use the courts to affect public policy in at least three ways: (1) by bringing suit directly on behalf of the gr oup itself , (2) b y financing suits brought b y individuals, and (3) by filing a companion brief as an amicus curiae (literally “friend of the court”) to an existing court case.

Among the best-known illustrations of using the courts as a strategy for political influence is found in the history of the National Association for the Advancement of Colored People (NAACP). The most important of such cour t cases was Brown v. Board of Education of Topeka, Kansas (1954), in which the U.S. S upreme Court held that legal segr egation of the schools was unconstitutional. 23 Later, extensiv e litigation spearheaded the women’s rights movement of the 1960s and the rights of gays and lesbians since the 1990s.

The 1973 Supreme Court case of Roe v. Wade, which took away a state ’s power to ban abortions, sparked a controversy that brought conservatives to the fore on a national level.24 Since 1973, conservative groups have made extensive and successful use of the cour ts to whittle away at the scope of the priv acy doctrine upon which the ruling in Roe v. Wade was based. They won rulings, for example, that pr ohibit the use of federal funds to pay for voluntary abortions. In 1989, right-to-life groups were able to use the case of Webster v. Reproductive Health Services to restore the right of states to place restrictions on abortion, thus partly undermining the Roe v. Wade

263I NTeReST GROUPS USe D I F FeReNT STRATeG IeS TO GA IN INFLUeNCe

wtp12e_ess_ptr_ch08_246-273.indd 263 11/28/18 4:30 PM

decision (see Chapter 4).25 The Webster case brought more than 300 interest groups on both sides of the abor tion issue to the S upreme Court’s door. The movement to extend rights for gays and lesbians also found success in the cour ts. In 2015, in the case of Obergefell v. Hodges, the S upreme Court declared that the F ourteenth Amendment prohibited states from refusing to issue marriage licenses to same-sex couples.26

Litigation involving large businesses is voluminous in such areas as taxation, anti- trust, interstate transpor tation, and pr oduct quality and standar dization. Often a business is brought to litigation against its will by virtue of initiatives taken against it by other businesses or b y government agencies. But many individual businesses bring suit themselves in order to influence government policy.

MOBILIZING PUBLIC OPINION BRINGS WIDER ATTENTION TO AN ISSUE

Going public is a strategy that attempts to mobilize the widest and most favorable climate of opinion and is a fav ored strategy of public inter est groups, membership groups, or online advocacy groups. Many groups consider it imperative to maintain political pressure at all times. O nline advocacy groups rely heavily on mobilizing their members via social media, Twitter campaigns, and targeted email messages on short notice. O n any giv en day a ne w viral media stor y may become headline news, and in most cases an interest group is behind the story. Such groups span the ideological spectrum, from liberal to conservative, and can wield significant pressure on elected officials to act.

Institutional Advertising One of the best-known ways of going public is the use of institutional advertising—advertising designed to cr eate a positive image of an organ - ization. A casual scanning of impor tant mass-cir culation magazines, ne wspapers, and television provides numerous examples of expensiv e and well-designed ads by the major oil and gas companies, automobile and steel companies, other large cor - porations, and trade associations. The ads attempt to show how much these organi- zations are doing for the country. Their purpose is to create and maintain a strongly positive public image in the hope of drawing on these fav orable feelings as needed for specific political campaigns later on.

Protests and Demonstrations Many groups resort to going public because they lack the r esources, the contacts, or the experience to use other political strategies. The sponsorship of boycotts, sit-ins, mass rallies, and marches by Martin Luther King, Jr.’s Southern Christian Leadership Conference and related organizations in the 1950s and ’60s is one of the most significant and successful cases of going public to create a mor e favorable climate of opinion b y calling attention to abuses. The success of these events inspired similar efforts by women’s groups.

The 2010 Republican takeo ver of the H ouse of R epresentatives began with the spontaneous self-organization of the Tea P arty mo vement in 2009 as an angry r esponse to the O bama administration’s health car e initiativ es. I n 2011

264 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 264 11/28/18 4:30 PM

the Occupy Wall Street movement sparked demonstrations acr oss America and around the world b y those who w ere outraged b y economic inequality. In 2014 the Black Lives Matter movement gained momentum after the shooting of a black teenager by a white police officer in Ferguson, Missouri. Shootings of black people by police across the country have led to major demonstrations under the banner of the movement.

Grassroots Mobilization Another form of going public is grassroots mobilization. In such a campaign, a lobb y group mobilizes its members thr oughout the country to contact government officials in support of the group’s position.

Among the most effective users of the grassr oots lobby effort in contemporar y American politics is the religious right. Networks of evangelical churches have the capacity to generate hundr eds of thousands of letters and phone calls to Congr ess and the White H ouse. S imilarly, the NRA maintains a po werful grassr oots lob - bying effort, spending mor e on mobilization of its members than on pr ofessional lobbyists. The NRA’s 3.5 million dues-paying members can be mobiliz ed to flood congressional offices with letters and phone calls, and few members of Congress are eager to pick a fight with the group.27 As discussed earlier, the interests of the NRA were seriously challenged in 2018 when high school students and teachers gained national attention and garner ed massive support by launching the M arch for Our Lives movement to demand stricter r egulations on gun o wnership after a string of school shootings.

Seeking to reform the criminal justice system and call attention to continued racism in the United States, the Black Lives Matter movement formed in 2013 and earned national attention following a series of high-profile shootings of African Americans by white police officers.

265I NTeReST GROUPS USe D I F FeReNT STRATeG IeS TO GA IN INFLUeNCe

wtp12e_ess_ptr_ch08_246-273.indd 265 11/28/18 4:30 PM

GROUPS OFTEN USE ELECTORAL POLITICS

In addition to the techniques already discussed, interest groups seek to use the elec- toral process to elect sympathetic legislators in the first place and to ensure that those who are elected will o we them a debt of gratitude for their suppor t. While groups invest far more resources in lobbying than in electoral politics, financial support and campaign activism can be important tools for organized interests.

Political Action Committees and Super PACs By far the most common electoral strategy employed by interest groups is that of giving financial support to political parties or to candidates running for office. But such support can easily cross the threshold into outright briber y. Therefore, Congress has occasionally attempted to regulate this strategy, but with limited success. The Federal Election Campaign Act of 1971 (amended in 1974) limits campaign contributions and r equires that each candidate or campaign committee itemiz e the full name and addr ess, occupation, and principal business of each person who contributes mor e than $100. These provisions create an open r ecord of which organizations and individuals fund the campaigns of candidates for public office.

Reaction to campaign spending abuses in the 1972 Watergate scandal produced further legislation on campaign finance in 1974 and 1976, but the effect has been to restrict individual rather than inter est group campaign activity. In the 2017–18 election cycle, individuals could contribute no mor e than $2,700 to any candidate for federal office in any primary or general election. A PAC, however, can contribute $5,000, provided it contributes to at least five different federal candidates each year. Beyond this, the laws permit corporations, unions, and other interest groups to form PACs and to pay the costs of soliciting funds from private citizens for the PACs.

The flurry of reform legislation in the 1970s attempted to r educe the influence that interest groups had over elections, but the effect has been the exact opposite. Electoral spending by interest groups has been increasing dramatically. The number of PACs has also increased significantly—from 480 in 1972 to over 7,000 in 2016. Opportunities for legally influencing campaigns are now widespread.

Given the enormous costs of television commercials, polls, computers, and other elements of the new political technology, most politicians are eager to receive PAC contributions and ar e at least willing to giv e a friendly hearing to the needs and interests of contributors. Most politicians do not simply sell their votes to the inter- ests that fund their campaigns. B ut there is considerable evidence to suppor t the contention that inter est groups’ campaign contributions do influence the overall pattern of political behavior in Congress and in the state legislatures.

Concern about PACs grew through the 1980s and ’90s, creating a constant drum- beat for reform of federal election laws. This resulted in the enactment of the “McCain- Feingold bill” (the Bipartisan Campaign Reform Act of 2002). When it was originally proposed, the bill was aimed at r educing or eliminating P ACs. But in a stunning about-face, when the act was adopted, it did not restrict PACs in any significant way.

In addition, several court rulings, including the Supreme Court’s Citizens United case in 2010, struck down limits on corporate political spending which gave rise to so-called Super PACs.28 Super PACs cannot donate to candidates or par ties directly,

266 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 266 11/28/18 4:30 PM

but they can spend unlimited sums of money on campaigns to influence an elec- tion in favor of candidates or par ties, as long as their activity (for example, cam- paign ads or mobilization efforts) is not coordinated with the candidates or parties. Because there are no limits on the amount of money S uper PACs may raise fr om corporations, unions, inter est groups, and individuals to then spend to influence elections, they hav e become mor e important than P ACs and hav e had the effect of str engthening inter est gr oups. These organizations’ expenditur es ar e vie wed as “issue adv ocacy” and ar e protected by the F irst Amendment. Citizens United dramatically increased the flow of money fr om Super PACs by removing restric- tions on corporate and union political spending, fr eeing the S uper PAC to back whatever politicians it chooses.29

In the 2016 pr esidential election, independent expenditur es totaled about $1.3 billion, of which $594 million came fr om Super PACs. Candidates H illary Clinton and Donald Trump raised $1.5 billion total, and the Super PACs supporting them raised $618 million, according to the Center for Responsive Government.30 In 2016, Super PACs spent more than $1.1 billion on House and Senate races.31 In the 2018 election there were 2,224 Super PACs, which together spent $815 million. 32 Super PACs now account for a major amount of the money spent in elections. The unlimited money raised and spent b y independent political committees makes the formal regulations on PACs and individual contributions almost irrelevant.

The Initiative Another political tactic sometimes used by interest groups is sponsor- ship of ballot initiatives at the state level. The initiative, a device adopted by a num- ber of states around 1900, allows proposed laws to be placed on the general-election ballot and submitted dir ectly to the state ’s v oters, b ypassing the state legislatur e and go vernor. The initiative was originally pr omoted b y late nineteenth-centur y Populists and P rogressives as a mechanism that would allo w the people to go vern directly—an antidote to interest group influence in the legislative process.

Some studies have suggested that, ironically, many initiative campaigns today are actually sponsored by interest groups seeking to cir cumvent legislative opposition to their goals. In recent years, for example, initiative campaigns have been spon- sored by the insurance industry, trial lawyer associations, and tobacco companies.33 Liberal activists have developed their own issue campaigns to promote issues such as increasing the minimum wage, promoting clean energy, strengthening environmen- tal protection laws, and decriminalizing of marijuana.

Groups and Interests WHAT DO WE WANT? We would like to think that government policies are products of legislators represent-

ing the public interest. The truth of the matter is that few programs and policies ever

reach the public agenda without the vigorous efforts of important national interest

267GROUPS AND INTeReSTS : WHAT DO We WANT?

wtp12e_ess_ptr_ch08_246-273.indd 267 11/28/18 4:30 PM

groups. In the realm of economic policy, social policy, and international trade policy,

the activity of interest groups is of critical importance.

James Madison wrote that “liberty is to faction as air is to fire.”34 By this he meant

that the organization and proliferation of interests are inevitable in a free society. As

long as competition among different interests was free, open, and vigorous—that is,

as long as pluralism thrived—there would be some balance of power among them,

and no one interest would be able to dominate the political or governmental process.

Indeed, there is considerable competition among organized groups in the United

States. Prochoice and antiabortion forces, for example, continue to be locked in a

bitter struggle, as are the NRA and gun control groups. Nevertheless, interest group

politics is not as balanced as Madison’s theory and pluralism might suggest. Although

the weak and poor do occasionally become organized to assert their interests, inter-

est group politics is generally a form of political competition best suited to the wealthy

and powerful.

Moreover, although groups sometimes organize to promote broad public concerns,

they more often represent relatively narrow, selfish interests. Small groups seeking

narrow interests can be organized much more easily than large and diffuse collec-

tives. The members of relatively small groups—say, bankers or hunting enthusiasts—

are usually able to recognize their shared interests and the need to pursue them in

the political arena. Members of large and diffuse groups—say, consumers or the

unemployed—often find it difficult to recognize their shared interests or the need to

engage in collective action to achieve them.35 Whether Ben Brown’s new Association

of Young Americans (discussed at the start of the chapter) can grow and achieve leg-

islative success remains to be seen, as younger Americans’ activism may be undercut

by the diverse array of interests they have and by the many immediate concerns that

dominate their time (school, work, and family, among others).

Organized interest groups sometimes seem to have a greater impact than voters

on the government’s policies and programs, especially through lobbying and financial

contributions to political candidates. (The “Who Participates?” feature on the facing

page shows how much major groups spend on lobbying activities.) Yet, before we

decide that we should do away with interest groups, we should think carefully: If there

were no organized interests, would the government pay more attention to ordinary

voters? Would young people be better or worse off if there were no interest groups in

the United States? Or would the government simply pay less attention to everyone?

In his work Democracy in America, Alexis de Tocqueville argued that the proliferation

of groups promoted democracy by encouraging governmental responsiveness. Does

group politics foster democracy or impede democracy? It does both.

268 CHAPTER 8 INTeReST GROUPS

wtp12e_ess_ptr_ch08_246-273.indd 268 11/28/18 4:30 PM

= $1,000,000Lobbying Expenditures, 2016 (top spenders)

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

WHO PARTICIPATES?

SOURCE: Center for Responsive Politics, www.opensecrets.org/lobby (accessed 11/21/17).

How Much Do Major Groups Spend?

U.S. Chamber of Commerce $103,950,000

National Association of Realtors $64,821,111

Blue Cross/Blue Shield $25,006,109

Pharmaceutical Research & Manufacturers of America

$19,730,000 American Medical Association

$19,410,000 Boeing Co. $17,020,000

National Association of Broadcasters

$16,438,000 American Hospital Association

$22,006,109

AT&T Inc. $16,370,000

Comcast Corp. $14,330,000

Northrop Grumman $12,050,000

ExxonMobil $11,840,000

Amazon.com $11,354,000

FedEx Corp. $12,541,000

The Internet & Television Association (NCTA)

$13,420,000

Alphabet Inc. $15,430,000

Lockheed Martin $13,615,811

Dow Chemical $13,635,982

Business Roundtable

$15,700,000 Southern Co. $13,900,000

wtp12e_ess_ptr_ch08_246-273.indd 269 11/28/18 4:30 PM

Practice Quiz

1. The theory that competition among organized interests will produce balance, with all the interests regulat- ing one another, is called (p. 249) a) pluralism. b) elite power politics. c) democracy. d) socialism. e) libertarianism.

2. The Natural Resources Defense Council, the Sierra Club, the National Civic League, and the Common Cause are all examples of (p. 251) a) membership associations. b) citizen groups. c) professional associations. d) ideological groups. e) public-sector groups.

3. Benefits sought by groups that are broadly available and cannot be denied to nonmembers are called (p. 255) a) purposive benefits. b) informational benefits. c) solidary benefits. d) material benefits. e) collective goods.

4. Discount purchasing and health insurance are examples of (p. 256) a) purposive benefits. b) informational benefits. c) solidary benefits. d) material benefits. e) member dues.

Get Involved with Interest Groups and Lobbying

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

Find an interest group that appeals to you at votesmart.org/interest-groups, then follow that group on Facebook or Twitter.

Find out which groups give the most money to your representatives in Congress by clicking “Congress” at www.opensecrets.org/politicians. You can look up your representatives by zip code.

Contact your Center for Campus Life to �nd out if groups you’re interested in have chapters on your campus. Many groups will gladly help students start campus chapters.

270 STUDY GU IDe

wtp12e_ess_ptr_ch08_246-273.indd 270 11/28/18 4:30 PM

5. Friendship and networking are examples of (p. 256) a) purposive benefits. b) informational benefits. c) solidary benefits. d) material benefits. e) member dues.

6. Which of the following is an important reason for the enormous increase in the number of groups seeking to influence the American political system? (p. 258) a) the decrease in the size and

activity of government during the last few decades

b) the increase in the size and activity of government during the last few decades

c) the increase in the amount of soft money in election campaigns in recent decades

d) the increase in legal protection provided to interest groups as a result of the Supreme Court’s evolving interpretation of the First Amendment

e) the increase in the number of people identifying themselves as an independent in recent decades

7. The term “Microsofted” refers to (p. 261) a) an individual having their identity

stolen as a result of a data breach at a major technology company.

b) a company becoming marginalized in the political process as a result of insufficient efforts to lobby policy makers.

c) a member of Congress accepting monetary bribes in exchange for protecting a company’s monopoly status.

d) interest groups filing lawsuits against privately owned companies in order to promote social change.

e) wealthy business people, such as Bill Gates, using their wealth to finance the creation and lobbying efforts of public interest groups.

8. A stable, cooperative relationship between a congressional committee, on administrative agency, and one or more supportive interest groups is called (p. 262) a) an issue network. b) a public interest group. c) a political action committee. d) pluralism. e) an iron triangle.

9. Which of the following best describes the federal government’s rules regarding lobbying? (pp. 261–3) a) Federal rules allow lobbying but

only on issues related to taxation. b) Federal rules allow lobbying but

only if the lobbyists receive no monetary compensation for their lobbying.

c) Federal rules strictly prohibit any form of lobbying.

d) Federal rules require all lobbyists to disclose the amounts and sources of small campaign contributions they collect from clients and “bundle” into large contributions.

e) There are no rules regulating lobby- ing because the federal government has never passed any legislation on the legality of the activity.

10. Which of the following is a way that interest groups use the courts to influence public policy? (p. 263) a) supplying judges with solidary

benefits b) joining an issue network c) creating an iron triangle d) forming a political action committee e) filing amicus briefs

11. Which of the following are examples of the “going public” strategy? (pp. 264–5) a) free riding, pluralism, and issue

networking b) donating money to political

parties, endorsing candidates, and sponsoring ballot initiatives

c) institutional advertising, grassroots advertising, and protests and demonstrations

271STUDY GU IDe

wtp12e_ess_ptr_ch08_246-273.indd 271 11/28/18 4:30 PM

Key Terms

collective goods (p. 255) benefits, sought by groups, that are broadly available and cannot be denied to nonmembers

free riders (p. 255) those who enjoy the benefits of collective goods but did not participate in acquiring them

grassroots mobilization (p. 265) a lobbying campaign in which a group mobilizes its membership to contact government officials in support of the group’s position

informational benefits (p. 256) special newsletters, periodicals, training programs, conferences, and other information provid- ed to members of groups to entice others to join

institutional advertising (p. 264) advertising designed to create a positive image of an organization

interest group (p. 249) individuals who organize to influence the government’s programs and policies

iron triangle (p. 262) the stable, cooperative relationships that often develop among a congressional committee, an administrative agency, and one or more supportive inter- est groups; not all of these relationships

d) providing informational benefits, providing solidary benefits, and providing material benefits

e) filing an amicus brief, bringing a lawsuit, and financing those who are filing a lawsuit

12. One of the major differences between PACs and Super PACs is that (p. 266) a) a PAC has a maximum contribu-

tion limit of $500 per candidate in each election cycle while a Super PAC has a maximum contribution limit of $1,000.

b) a PAC has a maximum contribution limit of $1,000 per candidate in each election cycle while a Super

PAC has a maximum contribution limit of $5,000.

c) a PAC has a maximum contribution limit of $5,000 per candidate in each election cycle while a Super PAC has a maximum contribution limit of $10,000.

d) a PAC has a maximum contribution limit of $5,000 per candidate in each election cycle while a Super PAC cannot donate to candidates directly.

e) a Super PAC has a maximum contribution limit of $5,000 per candidate in each election cycle while a PAC cannot donate to candidates directly.

are triangular, but the iron triangle is the most typical

lobbying (p. 261) a strategy by which organized interests seek to influence the passage of legislation or other public policy by exerting direct pressure on mem- bers of the legislature

material benefits (p. 256) special goods, services, or money provided to members of groups to entice others to join

membership association (p. 255) an organized group in which members actually play a substantial role, sitting on committees and engaging in group projects

New Politics movement (p. 259) a political movement that began in the 1960s and ’70s, made up of professionals and intellectuals for whom the civil rights and antiwar movements were formative experiences; the New Politics movement strengthened public interest groups

pluralism (p. 249) the theory that all inter- ests are and should be free to compete for influence in the government; the outcome of this competition is compromise and moderation

272 STUDY GU IDe

wtp12e_ess_ptr_ch08_246-273.indd 272 11/28/18 4:30 PM

Ainsworth, Scott. Analyzing Interest Groups. New York: W. W. Norton, 2002.

Baumgartner, Frank, Jeffrey M. Berry, Beth L. Leech, David C. Kimball, and Marie Hojnacki. Lobbying and Policy Change: Who Wins, Who Loses, and Why. Chicago: University of Chicago Press, 2009.

Berry, Jeffrey M., and Clyde Wilcox. Interest Group Society. 5th ed. New York: Routledge, 2008.

Cigler, Allan J., and Burdett A. Loomis, eds. Interest Group Politics. 9th ed. Washington, DC: CQ Press, 2015.

Drutman, Lee. The Business of America Is Lobbying: How Corporations Became Politicized and Politics Became More Corporate. New York: Oxford University Press, 2015.

Goldstein, Kenneth. Interest Groups, Lobbying, and Participation in America. New York: Cambridge University Press, 2008.

Herrnson, Paul, and Christopher Deering. Interest Groups Unleashed. Washington, DC: CQ Press, 2012.

Karpf, David. The MoveOn Effect: The Unexpected Transformation of American Political Advocacy. New York: Oxford University Press, 2012.

Lowi, Theodore J. The End of Liberalism. New York: W. W. Norton, 1979.

Olson, Mancur, Jr. The Logic of Collective Action: Public Goods and the Theory of Groups. Cambridge, MA: Harvard University Press, 1971.

Strolovitch, Dara. Affirmative Advocacy: Race, Class, and Gender in Interest Group Politics. Chicago: University of Chicago Press, 2007.

For Further Reading

political action committee (PAC) (p. 250) a private group that raises and distributes funds for use in election campaigns

public interest groups (p. 251) groups that claim they serve the general good rather than only their own particular interest

purposive benefits (p. 257) selective benefits of group membership that emphasize the purpose and accomplishments of the group

solidary benefits (p. 256) selective benefits of group membership that

emphasize friendship, networking, and consciousness-raising

staff organization (p. 255) type of membership group in which a professional staff conducts most of the group’s activities

Super PACs (p. 266) an independent political action committee that may raise unlimited sums of money from corpora- tions, unions, and individuals but is not permitted to contribute to or coordinate directly with parties or candidates

273STUDY GU IDe

wtp12e_ess_ptr_ch08_246-273.indd 273 11/28/18 4:30 PM

Congress WHAT GOVERNMENT DOES AND WHY IT MATTERS As the nation’s chief legislative body, Congress affects Americans every day with its

decisions. Guy Berkebile, founder of the Guy Chemical Company of Somerset,

Pennsylvania, was thrilled with the Tax Cut and Jobs Act passed by Congress

in late 2017. The bill lowers taxes for both large corporations and small busi-

nesses like Guy Chemical, which manufactures silicone and epoxy adhesives.

Berkebile noted that high business taxes had presented a challenge for him

as a small business owner. “I did not draw a salary from my company for

five years when I started it because the survival of my business in paying my

employees was always more important than how much I was making at the

time,” noted Berkebile, who mortgaged his house seven times to help finance

the business. He will face a lower tax rate under the new law.1

Congressional inaction affects Americans as well. Hazel Hoffman is a

5-year-old Illinois girl who suffers from a severe form of epilepsy, which

frequently sends her to the hospital with powerful seizures and which requires

expensive medications. Adding Hazel to her mother’s health insurance at work

090909 chapter

wtp12e_ess_ptr_ch09_274-313.indd 274 11/28/18 4:35 PM

Congress Congress’s actions—or lack of action—deeply affect the lives of everyday Americans. Taxes and children’s health insurance are two issues that Congress has tackled recently.

would cost $6,000 per year and would only cover half her health care costs.

Instead, Hazel is enrolled in the Children’s Health Insurance Program (CHIP),

created in 1997 to cover children in families with incomes too high for Medi-

caid but who can’t afford private coverage. It has widely been viewed as a suc-

cess, insuring nearly 9 million children for $13.6 billion in 20162 (in contrast,

Medicare for older people and the permanently disabled insures 57 million

people for $588 billion—six times the people for 43 times the cost).3 CHIP

was due for renewal in September 2017, but Congress declined to take action

for months, unable to agree on a spending bill and contemplating a federal

government shutdown. With CHIP money running out, officials in a number

of states were forced to draft letters to families terminating their coverage.

Finally, in January 2018, Congress broke its log jam and reauthorized CHIP for

six years, but not before sending families into a panic about what they would

do for health insurance if CHIP collapsed.

Congress has vast authority over many aspects of American life. Laws

related to federal spending, taxing, regulation, and federal judicial appointments

275

wtp12e_ess_ptr_ch09_274-313.indd 275 11/28/18 4:35 PM

all pass through Congress. While the debates over these laws may seem hard

to follow because they are often complex and technical or because heated,

partisan struggles distract from the substance of the issue, it is important

for the American people to learn about what Congress is doing. Actions

taken—or not taken—in Congress affect the everyday experiences we take for

granted. With its power to spend and tax, Congress also affects the choices

that people face and the opportunities they can expect in life. Making laws

is a complex and often messy process. Even so, it is vital for citizens to

monitor what Congress does. With so much information about Congress

available on the internet, it is not hard to get beyond the heated rhetoric and

simplistic headlines and ask your own questions about a proposed law. How

will it affect my life and the lives of people I care about? What is the impact

on my country?

★ Describe who serves in Congress and how they represent their constituents (pp. 277–88)

★ Explain how party leadership, the committee system, and the staff system help structure congressional business (pp. 288–93)

★ Outline the steps in the process of passing a law (pp. 293–97)

★ Analyze the factors that influence which laws Congress passes (pp. 297–303)

★ Describe Congress’s influence over other branches of government (pp. 303–5)

CHAPTER GOALS

276 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 276 11/28/18 4:35 PM

Congress Represents the American People

Congress is the most impor tant rep- resentative institution in American government. Each member ’s primary responsibility in theor y is to the dis - trict, to the constituency (the residents

in the area from which an official is elected), not to the congressional leadership, a par ty, or ev en Congr ess itself . Yet the task of r epresentation is not a simple one. Views about what constitutes fair and effective r epresentation differ, and constituents can make v ery different kinds of demands on their r epresentatives. Members of Congr ess must consider these div erse vie ws and demands as they represent their districts.

THE HOUSE AND SENATE OFFER DIFFERENCES IN REPRESENTATION

The framers of the Constitution provided for a bicameral legislature—that is, a leg - islative body consisting of two chambers or houses. The 435 members of the House are elected fr om districts appor tioned according to population; the 100 members of the S enate are elected in a state wide vote, with two senators fr om each. S ena- tors have much longer terms in office and usually represent much larger and more diverse constituencies than do their counterparts in the House (see Table 9.1).

Both formal and informal factors contribute to differences betw een the two chambers of Congress. Differences in the length of terms and requirements for hold- ing office specified by the Constitution in turn generate differences in how members of each body dev elop their constituencies and ex ercise their po wers of office. The small size and relative homogeneity of their constituencies and the fr equency with

Describe who serves in Congress and how they represent their constituents

HOUSE SENATE

Minimum age of member 25 years 30 years

U.S. citizenship At least 7 years At least 9 years

Length of term 2 years 6 years

number representing each state 1–53 per state (depends on population)

2 per state

Constituency Local Local and statewide

TABLE 9.1

Differences between the House and the Senate

277ConGrESS rEPrESEnTS THE AMEr ICAn PEoPLE

wtp12e_ess_ptr_ch09_274-313.indd 277 11/28/18 4:35 PM

which they must seek r e-election—every two y ears—make House members mor e attuned to the legislative needs of local inter est groups. The result is that members of the House most effectively and fr equently serve as the agents of w ell-organized local interests with specific legislative agendas—for instance, used-car dealers seek - ing relief from regulation or farmers looking for higher subsidies. B ecause House members seek r e-election every two y ears, they ar e interested in doing what their constituents want right now.

Senators, on the other hand, serve larger and more heterogeneous constituencies. As a result, they are somewhat better able than members of the House to serve as the agents for groups and interests organized on a statewide or national basis. Moreover, with longer terms in office (six years), senators have the luxury of considering “new ideas” or seeking to bring together ne w coalitions of inter ests rather than simply serving existing ones.

REPRESENTATION CAN BE SOCIOLOGICAL OR AGENCY

We have become so accustomed to the idea of representative government that we tend to forget what a peculiar concept representation really is. A representative claims to act or speak for some other person or group. But how can one person be trusted to speak for another? How do we know that those who call themselv es our representatives are actually speaking on our behalf rather than simply pursuing their own interests?

There are two circumstances under which one person reasonably might be trusted to speak for another. The first of these occurs if the two individuals are so similar in background, character, interests, and perspectives that anything said b y one would very likely reflect the views of the other as w ell. This principle is at the hear t of what is sometimes called sociological representation—a type of representation in which representatives have the same racial, gender , ethnic, religious, or educational back - grounds as their constituents. The assumption is that sociological similarity helps promote good representation; thus, the composition of a pr operly constituted rep- resentative assembly should mirror the composition of society.

The second circumstance under which one person might be tr usted to speak for another occurs if the two ar e formally bound together so that the r epresentative is in some way accountable to those she purports to represent. If representatives can somehow be punished or held to account for failing to r epresent their constituents properly, then they hav e an incentiv e to pr ovide good r epresentation even if their own personal backgrounds, views, and interests differ from those of the people they represent. This principle is called agency representation—the sort of representation that takes place when constituents have the power to hire and fire their representatives.

Both sociological and agency representation play a role in the relationship between members of Congress and their constituencies.

The Social Composition of the U.S. Congress The extent to which the U.S. Congress is representative of the American people in a sociological sense can be seen by examining the distribution of impor tant social characteristics in the H ouse and Senate today.

278 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 278 11/28/18 4:35 PM

African Americans, women, Latinos, and Asian Americans hav e increased their congressional representation in the past two decades (see F igure 9.1); but for most of American histor y, these gr oups had no r epresentatives in Congr ess. Even now, their representation in Congress is not comparable to the proportions in the general population. After the 2018 elections, Congr ess was 9 per cent African American, 8 per cent Latino, and 2 per cent Asian American. B y contrast, the American population was far more diverse, with 13.3 percent African Americans, 17.6 percent

FIGURE 9.1

Diversity in Congress, 1971–2019 Congress has become much more socially diverse since the 1970s. How closely does the number of female, African American, and Latino representatives reflect their proportion of the total U.S. population?

SOURCES: Harold W. Stanley and Richard G. Niemi, eds., Vital Statistics on American Politics 2003–2004 (Washington, DC: CQ Press, 2003), 207, Table 5–2; Jennifer E. Manning, Membership of the 113th Congress: A Profile, Congressional Research Service 7-5700, January 13, 2014, www.fas.org/sgp/crs/misc/R42964.pdf (accessed 2/24/14); Jennifer E. Manning, Membership of the 114th Congress: A Profile, Congressional Research Service, 7-5700, September 17, 2015, www.fas.org/sgp/crs/misc/R43869.pdf; R. Eric Petersen, Representatives and Senators: Trends in Member Characteristics since 1945, Congressional Research Service 7-5700, February 17, 2012, www.fas.org/sgp/crs/misc/R42365.pdf (accessed 9/28/15), 2019 data were calculated by the authors.

Women

African Americans

Latinos

70

80

90

100

60

50

40

1971 2003 2007 2011 2015 20191999199519911987198319791975

30

20

10

0

110

120

130

Asian Pacific Islander

279ConGrESS rEPrESEnTS THE AMEr ICAn PEoPLE

wtp12e_ess_ptr_ch09_274-313.indd 279 11/28/18 4:35 PM

Latinos, and 5.6 per cent Asian Americans. 4 S imilarly, the number of women in Congress continues to trail far behind their proportion of the population. Following the 2018 elections, the 116th Congress (2019–21) included over 100 women in the House of R epresentatives and at least 23 women in the S enate, an all-time high. Since many impor tant contemporar y issues do cut along racial and gender lines, a considerable clamor for r eform in the r epresentative process is likely to continue until these groups are fully represented.

The occupational backgrounds of members of Congr ess hav e always been a matter of inter est because many issues cut along economic lines that ar e relevant to occupations and industries. The legal profession is the dominant car eer of most members of Congress prior to their election, and public ser vice or politics is also a significant background. In addition, many members of Congr ess have impor tant ties to business and industry.5

Is Congress still able to legislate fairly or take account of a diversity of views and interests if it is not a sociologically representative assembly?

Representatives as Agents A good deal of evidence indicates that whether or not members of Congress share their constituents’ sociological characteristics, they do work very hard to speak for their constituents ’ views and ser ve their constitu - ents’ interests in the go vernmental process. The idea of representative as agent is similar to the relationship of lawyer and client. True, the relationship between the

To more effectively promote a legislative agenda addressing issues that disproportionately affect racial and ethnic minority groups, members of Congress from those groups have formed caucuses. Here, Michelle Lujan Grisham (D-N. Mex.), former chair of the Congressional Hispanic Caucus, speaks out about Donald Trump’s proposed changes to immigration policies.

280 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 280 11/28/18 4:35 PM

House member and an av erage of 710,767 “ clients” in the district, or the senator and millions of “ clients” in the state, is v ery different from that of the lawy er and client. But the criteria of performance are comparable. One expects at the very least that each r epresentative will constantly be seeking to disco ver the inter ests of the constituency and will take those interests into account.6 Whether members of Con- gress always represent the interests of their constituents is another matter, as we will see later in this chapter.

There is constant communication betw een constituents and congr essional offices, and the volume of email from constituents and advocacy groups has grown so large so quickly that congr essional offices have struggled to find effective ways to r espond in a timely manner .7 A t the same time, members of Congr ess have found new ways to communicate with constituents. They have created websites describing their achiev ements, established a pr esence on social networ king sites, and issued e-newsletters that alert constituents to curr ent issues. Many have also set up blogs and Twitter accounts to establish a more informal style of communi- cation with constituents.

The seriousness with which members of the House behav e as r epresentatives can be seen in the amount of time spent on behalf of their constituents. Well over one-quarter of their time and nearly two-thir ds of the time of their staff members is devoted to constituency ser vice (called “ casework”). This service includes talk - ing to constituents, providing them with minor services, presenting special bills for them, attempting to influence decisions by regulatory commissions on their behalf, helping them apply for federal benefits such as Social Security and Small Business Administration loans, and assisting them with immigration cases.8

In many districts there are two or three issues that are top priorities for constit- uents and, therefore, for the representatives. For example, representatives from dis- tricts that grow wheat, cotton, or tobacco will likely give legislation on these subjects great attention. In oil-rich states such as Oklahoma, Texas, and California, senators and members of the House are likely to be leading advocates of oil interests. For one thing, representatives are probably fearful of v oting against their district inter ests; for another, the districts are unlikely to have elected representatives who would want to vote against them. On the other hand, on many issues, constituents do not have very strong views, so representatives are free to act as they think best. Foreign policy issues often fall into this category.

The influence of constituencies is so pervasive that both par ties generally agr ee that members should not be pressured to vote against their constituencies if doing so would endanger the re-election chances of any member. Party leaders obey this rule fairly consistently by not asking any member to v ote in a way that might conflict with a district interest.

THE ELECTORAL CONNECTION HINGES ON INCUMBENCY

The sociological composition of Congress and the activities of r epresentatives once they are in office are very much influenced by electoral considerations. Two factors related to the U.S. electoral system affect who gets elected and what they do once

281ConGrESS rEPrESEnTS THE AMEr ICAn PEoPLE

wtp12e_ess_ptr_ch09_274-313.indd 281 11/28/18 4:35 PM

in office. The first factor is that of incumbency advantage. The second is the way congressional district lines ar e drawn, which can gr eatly affect the outcome of an election. Let us examine more closely the impact that these considerations hav e on representation.

Incumbency—holding a political office for which one is running—plays a v ery important role in the American electoral system and in the kind of r epresentation citizens get in Washington. Once in office, members have access to an array of tools that they can use to aid their r e-election. The most important of these is constitu- ency service—taking care of the pr oblems and r equests of individual v oters. Con- gressional offices will intervene on behalf of constituents when they hav e problems with federal programs or agencies, in such areas as Social Security benefits, veterans’ benefits, and passports. When congressional offices contact federal agencies dealing with such matters, the offices usually respond with extra speed, knowing that mem- bers of Congress can embarrass or penalize an agency that doesn’t do its job prop- erly. Through such services and through regular e-newsletters, the incumbent seeks to establish a “personal” relationship with the constituents. The success of this strat- egy is evident in the high rates of re-election for congressional incumbents, which are as high as 98 per cent for House members and 90 per cent for members of the Senate in recent years (see Figure 9.2). It is also evident in what is called “sophomore surge”—the tendency for incumbent candidates to win a higher per centage of the vote when seeking future terms in office.

The precarious economy and the backlash against the party in power made 2008 and 2010 difficult election years for some incumbents, par ticularly D emocrats, given that their par ty controlled the pr esidency and both houses of Congr ess in a year when economic woes contributed to str ong anti-incumbent sentiment. 9 In 2016, Trump’s surprise victory in the presidential race benefited Republican incum- bents, who had appeared to be in danger of losing their seats.

Incumbency can also help a candidate b y scaring off potential challengers. In many races, potential candidates may decide not to r un because they fear that the incumbent simply has too much money or is too w ell liked or too w ell known. Potentially strong challengers may also decide that a district’s partisan leanings are too unfav orable. The efforts of incumbents to raise funds to war d off potential challengers start early. In addition to incumbents’ own efforts, each political party makes a special effort to r eelect incumbents vie wed as especially vulnerable. The Democratic Congr essional Campaign Committee (DCCC) places vulnerable incumbents in its “F rontline” pr ogram to r eceive extra funding, choice committee assignments, and high-pr ofile speaking engage- ments. For the 2018 midterm elections, the DCCC placed 19 incumbents on its Frontline list, many of whom had won in 2016 in districts carried by Trump. For its par t, the R epublican Congressional Campaign Committee (R CCC) named ten members to its o wn incumbent pr otection pr ogram.10 In 2018, appr oxi- mately 93 percent of incumbents in the House and 86 percent in the Senate were re-elected. Seventy-six of the 435 H ouse races were decided by a margin of less than 10 percent. Five incumbents in the Senate, and 20 in the House lost their seats in 2018.

282 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 282 11/28/18 4:35 PM

The advantage of incumbency thus tends to preserve the status quo in Congress. This fact has implications for the social composition of Congress. Women who run for open seats (that is, seats for which there are no incumbents) are just as likely to win as male candidates. 11 However, the incumbency advantage makes it harder for women to incr ease their numbers in Congr ess because most incumbents ar e men. Supporters of term limits (legally prescribed limits on the number of terms an elected official can serve) argue that such limits ar e the only way to get ne w faces into Congress.

Apportionment and Redistricting Another major factor that affects who wins a seat in the H ouse of Representatives is the way congr essional districts are drawn (senators, on the other hand, r epresent entire states). Every 10 y ears, state legisla - tures must r edraw election districts and r edistribute legislativ e r epresentatives to reflect population changes or in response to legal challenges to existing districts. Because the number of congressional seats has been fixed at 435 since 1929, r edis- tricting is a zero-sum process; for one state to gain a seat, another must lose one. The process of allocating congressional seats among the 50 states is called apportionment. Over the past sev eral decades, the shift of the American population to the S outh

FIGURE 9.2

The Power of Incumbency Members of Congress who run for re-election have a very good chance of winning. Has the incumbency advantage generally been greater in the House or in the Senate? What are the consequences of the incumbency advantage for who serves in Congress?

SOURCE: Norman J. Ornstein et al., eds., Vital Statistics on Congress, 1999–2000 (Washington, DC: AEI Press, 2000), 57–58; “Reelection Rates over the Years,” opensecrets.org.

House

Senate

PERCENTAGE RE-ELECTED

100%

90

80

70

60

50

40 1950 1960 1970 1980 1990 2000 2010 2020

Increased political competition in the post-Watergate era created a large turnover in the Senate between 1974 and 1980.

Voter dissatisfaction with the Iraq War caused incumbents to lose ground in 2006, although the overwhelming majority were re-elected.

283ConGrESS rEPrESEnTS THE AMEr ICAn PEoPLE

wtp12e_ess_ptr_ch09_274-313.indd 283 11/28/18 4:35 PM

and the West has gr eatly increased the siz e of the congr essional delegations fr om those regions. This trend continued after the 2010 census and will likely continue after 2020 (see Figure 9.3). Texas is likely to gain three seats (after gaining four after 2010), and Florida will likely gain two . States in the Northeast and “rust belt” are likely to lose seats. Latino voters are nearly three times as prevalent in states that gained seats than in states that lost seats, suggesting that the gr owth of the Latino population is a major factor in the American political landscape.12

States that gain or lose seats must then r edraw their congr essional district bor - ders. This is a highly political process: districts are shaped to create an advantage for the party with a majority in the state legislature, which controls the redistricting pro- cess. In this complex process, those charged with drawing districts use sophisticated computer technologies to come up with the most fav orable district boundaries. Redistricting can create open seats and pit incumbents of the same party against one

FIGURE 9.3

Projected Congressional Reapportionment, 2020 States in the West and parts of the South will likely be the big winners in the reappor- tionment of House seats following the 2020 census. The old manufacturing states in the Midwest and Mid-Atlantic regions will be the biggest losers. Is this shift likely to favor Democrats or Republicans?

SOURCE: Rebecca Tippett, “2020 Congressional Reapportionment: An Update,” December 21, 2017, Carolina Population Center, University of North Carolina, demography.cpc.unc.edu (accessed 6/8/18).

MT 1

ID 2

UT 4

CO 8

NM 3

AZ 10

NV 4

WY 1

WA 10

OR 6

CA 53

ND 1

KS 4

OK 5

TX 39

MN 7

IA 4

WI 8

IL 17

AR 4 AL

6MS4LA 6

MI 13

IN 9

MO 8

NE 3

SD 1

VT 1

NH 2

MA 9

RI 1 CT 5

NJ 12

MD 8 DE 1

GA 14

FL 29

SC 7

NC 14

OH 15

KY 6

TN 9

VA 11

PA 17

NY 26

2 WV

ME 2

Gain 2 seats Gain 1 seat No change Lose 1 seat Lose 2 seats

Gain 3 seatsAK 1 HI

2

284 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 284 11/28/18 4:35 PM

another, ensuring that one of them will lose. Redistricting can also give an advantage to one party by clustering voters with certain ideological or sociological characteris- tics in a single district or by diluting the influence of voter blocs by separating those voters into two or more districts. The manipulation of electoral districts to serve the interests of a particular group is known as gerrymandering.

Since the passage of the 1982 amendments to the 1964 Civil Rights Act, race has become a major (and contr oversial) consideration in drawing v oting districts. These amendments, which encouraged the creation of districts in which members of racial minorities hav e decisive majorities, hav e greatly increased the number of minority representatives in Congr ess. After the 1990 r edistricting cycle, the num - ber of predominantly minority districts doubled, rising fr om 26 to 52. Among the most fervent supporters of the new minority districts were white Republicans, who used the opportunity to create more districts dominated by white Republican vot- ers. These developments raise thorny questions about representation. Some analysts argue that the system may grant minorities gr eater sociological representation, but it has made it more difficult for them to win substantive policy goals, while others dispute this argument.13

In the case of Miller v. Johnson (1995), the S upreme Court limited racial r edis- tricting by ruling that race could not be the pr edominant factor in cr eating elec- toral districts.14 The distinction between race being a “predominant” factor and its being one factor among many is hazy. As a result, concerns about redistricting and

Redrawing legislative districts is a difficult task because it has implications for who will be elected. Here, the attorney for Arizona’s Independent Redistricting Commission discusses a possible layout with a city council member from Casa Grande. Arizona gained one congressional seat following the 2010 census.

285ConGrESS rEPrESEnTS THE AMEr ICAn PEoPLE

wtp12e_ess_ptr_ch09_274-313.indd 285 11/28/18 4:35 PM

representation persist.15 Questions about minority representation emerged in 2011 in Texas, which gained four seats as a r esult of r eapportionment. The Republican legislature drew a map that advantaged Republicans in three of those districts. But the plan dr ew a legal challenge on the gr ounds that it underr epresented Hispanic voters, who accounted for most of the state ’s population growth. Although federal judges dr ew a map more fav orable to minorities (and D emocrats), the S upreme Court ruled that the state did not hav e to use the map drawn b y judges. The state ultimately agreed to a map that added two Latino-dominated districts. However, federal courts ruled that this map also weakened Latino and African American polit- ical power by creating too few minority districts.

The future of race in redistricting became more uncertain after the 2013 Supreme Court decision in Shelby County v. Holder. That decision invalidated a section of the Voting Rights Act requiring that the J ustice Department approve the r edistricting plans of jurisdictions with a histor y of racial discrimination. 16 M any D emocrats expressed disappointment with the decision, fearing that the pr eviously co vered states, several of which are controlled by Republican majorities, might try to redraw district lines to par tisan ends and fur ther bias districts to ward Republicans.17 In 2015, Alabama’s black legislators challenged that state’s redistricting under the Vot- ing Rights A ct. They charged that the Republican legislature had diluted the v ote of African Americans by packing black voters into districts that alr eady had strong minority r epresentation, thus enhancing the chances of white R epublican candi - dates in the r emaining districts. The legislature claimed, on the contrar y, that it was acting in accordance with the Voting Rights Act by concentrating black voters. Although the S upreme Cour t did not declar e the districting unconstitutional, it ruled that the lower court had erred in approving the districts.18 The ruling signaled that state legislatures would not be able to use the Voting Rights Act to justify pack- ing minority voters into districts.

DIRECT PATRONAGE MEANS BRINGING HOME THE BACON

Members of Congr ess have numerous opportunities to pr ovide direct benefits, or patronage, for their constituents. The most important such oppor tunity for dir ect patronage is in so-called pork-barrel legislation (or pork)—appropriations made b y legislative bodies for local pr ojects that may not be needed but that ar e created to help local representatives win re-election in their home districts. This type of legis- lation specifies a project to be funded within a par ticular district. Many observers of Congress argue that por k-barrel bills ar e the only ones that some members ar e serious about moving toward actual passage because they are seen as so important to members’ re-election bids.

A common form of pork-barreling is the “earmark,” the practice through which members of Congress insert into bills language that provides special benefits for their own constituents. When Democrats took o ver Congress in 2007, they v owed to limit the use of earmarks, which had grown from 1,439 per year in 1995 to 15,268 in 2006. More troubling, earmarks were connected to congressional scandals. For

286 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 286 11/28/18 4:35 PM

example, Republican House member Randy “Duke” Cunningham (R-Calif.) was sent to jail in 2005 for accepting bribes by companies hoping to receive earmarks in return.19 The House passed a new rule requiring that those representatives support- ing each earmark identify themselves and guarantee that they hav e no personal finan- cial stake in the r equested project. An ethics law applied similar pr ovisions to the Senate. Though the new requirements appeared to have had some impact, in the midst of the sharp economic do wnturn in 2009, Congr ess passed a bill designed to stimulate the economy that contained mor e than 8,000 earmar ks. In his 2010 State of the U nion addr ess, P resident O bama called for Congr ess to publish a list of all earmar k requests on a single w ebsite. Congress not only failed to enact such legislation, in 2010 it set a ne w record by passing 11,320 earmar ks, worth $32 billion. But in 2011 the H ouse and the S enate agreed to a two-y ear morato- rium on earmarks in spending bills and renewed the ban for the 113th and 114th Congresses.20 In 2018, President Trump suggested to Congress that it should con- sider restoring earmarks as a way of enhancing congr essional power vis à vis the bureaucracy and to help “grease” the legislative wheels by giving members an incen- tive to support legislative programs. Trump’s comments were greeted favorably by many congressional leaders.21

Some analysts claim that the lack of earmar ks contributes to congressional grid- lock. They argue that earmarks pr ovide congr essional leaders with incentiv es to promote compromise among members. S upporters of this position contend that earmarks are not inher ently an abuse of power and note that they often support legitimate district projects, such as transportation and parks.22

There are a few other types of dir ect patronage (see Figure 9.4). One important form of constituency service is intervention with federal administrative agencies on behalf of constituents. M embers of the H ouse and Senate and their staffs spend a great deal of time seeking to secur e favorable treatment for constituents and sup - porters. For example, members of Congress can assist senior citizens who are having Social Security or Medicare benefit eligibility problems. A small but related form of patronage is securing an appointment to one of the military academies for the child of a constituent. Traditionally, these appointments are allocated one to a district.

A different form of patronage is the private bill—a bill in Congress to provide a specific person with some kind of relief, such as a special ex emption from immi- gration quotas. I t is distinguished fr om a public bill, which is supposed to deal with general rules and categories of behavior, people, and institutions. As many as 75 percent of all private bills introduced (and one-third of those that pass) are con- cerned with obtaining citiz enship for foreign nationals who cannot get permanent visas to the United States because the immigration quota for their countr y is filled or because of something unusual about their par ticular situation. 23 Other private bills address a diverse set of issues involving a claim against the federal government, such as pr oblems with v eterans’ benefits or taxation. Private legislation is a con - gressional privilege that can be abused, but it is impossible to imagine members of Congress completely giving up one of the easiest, cheapest, and most effective forms of patronage available to them. I t can be defended as an indispensable par t of the process by which members of Congress seek to fulfill their role as representatives.

287ConGrESS rEPrESEnTS THE AMEr ICAn PEoPLE

wtp12e_ess_ptr_ch09_274-313.indd 287 11/28/18 4:35 PM

The Organization of Congress Is Shaped by Party

The U.S. Congress is not only a r ep- resentative assembly but also a legis - lative body. To ex ercise its po wer to make laws, Congress must first bring about something close to an organi - zational miracle. The building blocks

of congressional organization include the political par ties, the committee system, congressional staff, the caucuses, and the parliamentary r ules of the H ouse and Senate. Each of these factors plays a key r ole in the organization of Congr ess and in the process through which Congress formulates and enacts laws.

Explain how party leadership, the committee system, and the staff system help structure congressional business

FIGURE 9.4

How Members of Congress Represent Their Districts

Solving problems with government agencies

Providing jobs

Sponsoring private bills

Sponsoring appointments to service academies

Answering complaints

Providing information

Introducing legislation

Intervening with regulatory agencies

Obtaining federal grants and contracts

Helping importing or exporting

Helping secure favorable tax status

Making promotional speeches

Making symbolic gestures

Obtaining federal projects for district

Obtaining grants and contracts that promote employment in district

Supporting policies that enhance district’s

economic prosperity, safety, cultural resources, etc.

Participating in state and regional caucuses

Individual constituents

Organized interests

District as a whole

Members of Congress

REPRESENT

BY

REPRESENT

BY

REPRESENT

BY

288 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 288 11/28/18 4:35 PM

PARTY LEADERSHIP IN THE HOUSE AND THE SENATE ORGANIZES POWER

Every two years, at the beginning of a new Congress, the members of each party in the House of Representatives gather to elect their leaders. H ouse Republicans call their gathering the conference. House Democrats call theirs the caucus. The elected leader of the majority par ty is later proposed to the whole H ouse and is elected to the position of Speaker of the House, with voting along straight party lines, although in recent speaker elections some members of the speaker ’s party have voted against their own candidate for the job to indicate their dissatisfaction with par ty leader- ship. The Speaker is the most impor tant par ty and H ouse leader and can influ- ence the legislative agenda, the fate of individual pieces of legislation, and members’ positions within the House. The House majority conference or caucus then also elects a majority leader. (In the House, the majority leader is subordinate in the party hierarchy to the Speaker of the House.) The minority party goes through the same process and selects the minority leader. Both parties also elect assistants to their par ty leaders, called whips, who are responsible for coordinating the party’s legislative strat- egy, building support for key issues, and counting votes.

Next in line of importance for each party after the Speaker and majority or minor- ity leader is what Democrats call the Steering and Policy Committee—Republicans have a separate Steering Committee and a separate Policy Committee—whose tasks are to assign new legislators to committees and to deal with the r equests of incum- bent members for transfers from one committee to another.

Generally, members of Congress seek assignments that will allow them to influ- ence decisions of special impor tance to their districts. R epresentatives from farm districts, for example, may r equest seats on the Agricultur e Committee.24 Seats on powerful committees such as Ways and Means, which is responsible for tax legisla- tion, and Appropriations are especially popular.

Within the Senate, the majority party usually designates a member of the major- ity party with the greatest seniority to serve as president pro tempore, a position of primarily ceremonial leadership. Real power is in the hands of the majority leader and minority leader , each elected b y par ty conference. Together they contr ol the Senate’s calendar, or agenda, for legislation. Each par ty also elects a P olicy Com- mittee, which advises the leadership on legislativ e priorities. In recent years, party leaders in both chambers have gone around the committees to directly control the content and direction of important legislation.

THE COMMITTEE SYSTEM IS THE CORE OF CONGRESS

The committee system is central to the operation of Congress. At each stage of the legislative process, Congress relies on committees and subcommittees to do the hard work of sor ting through alternatives and writing legislation. There are several dif- ferent kinds of congressional committees; these include standing committees, select committees, joint committees, and conference committees.

Standing committees ar e v ery impor tant ar enas of congr essional policy making. These permanent committees remain in existence fr om one session of Congr ess to

289THE orGAn IzAT Ion oF ConGrESS IS SHAPEd By PArTy

wtp12e_ess_ptr_ch09_274-313.indd 289 11/28/18 4:35 PM

the next; they hav e the po wer to pr o- pose and write legislation. The jurisdic- tion of each standing committee covers a par ticular subject matter , such as finance or agriculture, which in most cases parallels the major depar tments or agencies in the ex ecutive branch. Among the most impor tant stand - ing committees ar e those in charge of finances. The House Ways and Means Committee and the S enate F inance Committee ar e po werful because of their jurisdiction over taxes, trade, and expensive entitlement programs such as Social S ecurity and M edicare. The Senate and H ouse Appropriations com- mittees also play impor tant ongoing roles because they decide ho w much

funding various programs will actually r eceive; they also determine exactly ho w the money will be spent. A seat on the Appropriations Committee allows a member the opportunity to direct funds to a favored program—perhaps one in his home district.

Except for the H ouse Rules Committee, all standing committees r eceive pro- posals for legislation and pr ocess them into official bills. The House Rules Com- mittee decides the order in which bills come up for a vote on the House floor and determines the specific rules that govern the length of debate and oppor tunity for amendments. The Senate, which has less formal organization and fe wer rules, does not have a similarly powerful rules committee.

Select committees are usually temporar y and normally do not hav e the power to present legislation to the full Congr ess but rather ar e set up to highlight or inv es- tigate a par ticular issue or addr ess an issue not within the jurisdiction of existing committees. (The House and Senate Select Intelligence committees are permanent, however, and do hav e the power to r eport legislation, which means they can send legislation to the full H ouse or S enate for consideration.) These committees may hold hearings and serve as focal points for the issues they are charged with consider- ing. Congressional leaders form select committees when they want to take up issues that fall between the jurisdictions of existing committees, to highlight an issue, or to investigate a particular problem. For example, the Senate set up the Senate Water- gate Committee in 1973 to investigate the Watergate break-in and cover-up. More recently, the H ouse Select Committee on B enghazi was established to inv estigate the 2012 attack on the U.S. Embassy in B enghazi, Libya. In 2015 the committee held hearings to investigate Hillary Clinton’s use of a private email server during her tenure as secr etary of state. S elect committees set up to highlight ongoing issues have included the House Select Committee on Hunger, established in 1984, and the House Select Committee on E nergy Independence and G lobal Warming, created in 2007 but abolished in 2011, when Republicans assumed control of the House.

After Democrats took control of the House of Representatives in November 2018, former House minority leader Nancy Pelosi (D-Calif.) was poised to take over the role of Speaker of the House from retiring Speaker Paul Ryan (R-Wisc.). She had previ- ously served in the same position from 2007–11.

290 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 290 11/28/18 4:35 PM

Joint committees are formed of members of both the Senate and the House. There are four such committees: economic, taxation, library, and printing. These joint committees are permanent, but they do not have the power to report legislation. The Joint Economic Committee and the J oint Taxation Committee hav e often play ed impor tant roles in collecting information and holding hearings on economic and financial issues. Finally, conference committees are temporary joint committees whose members are appointed by the S peaker of the H ouse and the pr esiding officer of the Senate. These commit- tees are charged with working out a compromise on legislation that has been passed by the House and the S enate but in different versions. Conference committees can play an extremely important role in determining what laws are actually passed because they must reconcile any differences in the legislation passed by the House and Senate.

When contr ol of Congr ess is divided betw een two par ties, each is guaranteed significant representation in confer ence committees. When a single par ty controls both houses, the majority par ty is not obligated to offer such representation to the minority party. In 2003, Democrats complained that Republicans took this power to the extreme by excluding them and adding new provisions to legislation at the con - ference committee stage. D emocrats even prevented several conference committees from convening to protest their near exclusion from conference committees on major energy, health care, and transportation laws. After the Democrats returned to power in 2007, they largely b ypassed the confer ence committees; when their early efforts to reach compromises in the confer ence were derailed b y par tisan differences, the Demo crats began making closed-door agreements between top leaders in the House and the Senate. Although the process facilitated compromises across the two cham- bers, it meant that important changes to bills were made in private, without the trans- parency that would have been part of the conference committee process. After 2010, Congress continued to avoid conference committees. Instead, the Republican House and Democratic Senate leaders exchanged amendments as they sought to reach agree- ment on the final version of a bill, a practice known informally as “ping-ponging.”25

Within each committee, hierar chy is based on seniority . Seniority is the ranking given to an individual on the basis of length of continuous ser vice on a commit - tee in Congress. In general, each committee is chair ed by the most senior member of the majority par ty. But the principle of seniority is not absolute. Both Demo- crats and Republicans have violated it on occasion. In 1995, when the Republicans won control of the H ouse, then-Speaker Newt Gingrich instituted a ne w practice of frequent seniority violations, often selecting committee chairs based on lo yalty or fund-raising abilities, a practice that subsequent R epublican leaders have main- tained. In 2007 the D emocrats returned to the seniority principle to select com - mittee chairs but altered traditional practices in other ways by offering freshman Democrats choice committee assignments to increase their chances of re-election.26

THE STAFF SYSTEM IS THE POWER BEHIND THE POWER

The congressional institution second in impor tance only to the committee sys - tem is the staff system. Every member of Congr ess employs a large number of staff members, whose tasks include handling constituent requests and, to a large

291THE orGAn IzAT Ion oF ConGrESS IS SHAPEd By PArTy

wtp12e_ess_ptr_ch09_274-313.indd 291 11/28/18 4:35 PM

Women’s Parliamentary Representation Worldwide

April 2018 marked the first time in U.S. history that women comprised 20 percent of Congress, with 19.3 percent of the House and 23 percent of the Senate being women.a When we look around the world however, we find that the United States ranks 102 out of 188 countries in women’s parliamentary representation.

Why? research suggests women candidates benefit from gender quotas instituted (in

several countries) and may be at a dis- advantage in “winner-take-all” elections like those in the United States.b In rwanda, women comprise 61 percent of parliament, and there is both a gender quota (30 percent of the legislature is required to be women) and proportional representation (election rules where parties receive seats based on the percentage of the vote they received).

a The Center for American Women and Politics (CAWP), “With Election of Debbie Lesko (AZ-08), Record Number of Women in Congress,” April 24, 2018, cawp.rutgers.edu/sites/default/files/resources/18.4.24_pr_lesko_az08.pdf (accessed 5/18/18). b Lena Wängnerud, “Women in Parliaments: Descriptive and Substantive Representation,” Annual Review of Political Science 12 (2009): 51–69.

Very low (0–15%) Low (15.1–30%) Medium (30.1–45%)

High (45.1%+) No data available

PARLIAMENTARY REPRESENTATION OF WOMEN

SOURCE: The Inter-Parliamentary Union (IPU), “Women in National Parliaments,” April 1, 2018, archive.ipu.org (accessed 5/18/18).

wtp12e_ess_ptr_ch09_274-313.indd 292 11/28/18 4:36 PM

and growing extent, dealing with legislative details and the activities of adminis- trative agencies. Increasingly, staffers bear the primary responsibility for formu- lating and drafting pr oposals, organizing hearings, dealing with administrativ e agencies, and negotiating with lobb yists. Indeed, legislators typically deal with one another thr ough staff rather than through direct, personal contact. Today, staffers develop policy ideas, draft legislation, and have a good deal of influence over the legislative process.

Representatives and senators together employ o ver 12,000 staffers in their Washington and home offices. In addition, Congress employs more than 2,000 com- mittee staffers. These individuals make up the permanent staff, who stay attached to every House and Senate committee regardless of turnover in Congress and who are responsible for organizing and administering the committee ’s work, including researching, scheduling, organizing hearings, and drafting legislation. Committee staffers also play key roles in the legislative process.

Rules of Lawmaking Explain How a Bill Becomes a Law

The institutional structure of Con - gress is one key factor that helps shape the legislative process. A second and equally important set of factors is the

rules of congressional procedure. These rules govern everything from the introduc- tion of a bill (a pr oposed law that has been sponsor ed by a member of Congr ess and submitted to the cler k of the House or Senate) through its submission to the president for signing (see F igure 9.5). Not only do these r egulations influence the fate of each and every bill but they also help determine the distribution of power in the Congress.

THE FIRST STEP IS COMMITTEE DELIBERATION

Even if a member of Congr ess, the White House, or a federal agency has spent months developing and drafting a piece of legislation, it does not become a bill until it is submitted officially by a senator or representative to the clerk of the House or S enate and r eferred to the appr opriate committee for deliberation. B ills can originate in the H ouse or the S enate, but only the H ouse can intr oduce “money bills”: those that spend or raise r evenues. The framers inserted this provision in the Constitution because they believ ed that the chamber closest to the people should exercise greater authority over taxing and spending. No floor action on any bill can take place until the committee with jurisdiction o ver it has taken all the time it needs to deliberate. During the course of its deliberations, the committee typically refers the bill to one of its subcommittees, which may hold hearings, listen to expert testimony, and amend the pr oposed legislation befor e referring the bill to the full committee for consideration. The full committee may accept the recommendation of the subcommittee or hold its own hearings and prepare its own amendments. Or,

Outline the steps in the process of passing a law

293rULES oF LAWMAk InG ExPLA In HoW A B I LL BECoMES A LAW

wtp12e_ess_ptr_ch09_274-313.indd 293 11/28/18 4:36 PM

FIGURE 9.5

How a Bill Becomes a Law *Points at which a bill can be amended. **If the president neither signs nor vetoes a bill within 10 days, it automatically becomes law. †Points at which a bill can die.

Speaker of House receives bill

Committee*

Subcommittee*

Hearings Committee markup*†

Committee*

Subcommittee*

Hearings Committee markup*†

President of Senate receives bill

Rules Committee*Speaker*

House floor*† House Bill

House amends Senate bill

House floor Senate floor

Senate amends House bill

Senate Bill

Senate floor*†

Majority leader*

Conference committee*

Conference report*†

Adoption by both houses

House approves Senate amendment

Senate approves House amendment

White House**

Approve

House and Senate floor*

Veto override

Law

Veto

294 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 294 11/28/18 4:36 PM

even more frequently, the committee and subcommittee may do little or nothing with a bill that has been submitted to them. Many bills are simply allowed to “die in committee” without serious consideration given to them. In a typical congressional session, 80–90 percent of the roughly 10,000 bills introduced die in committee—an indication of the power of the congressional committee system.

In the H ouse, the r elative handful of bills that ar e reported out of committee must, in the H ouse, pass one additional hur dle within the committee system: the Rules Committee, which determines the r ules that will go vern action on the bill on the House floor. In particular, the R ules Committee allots the time for debate and decides to what extent amendments to the bill can be proposed from the floor. In recent years, the Rules Committee has become less po werful because the House leadership exercises so much influence over its decisions.

DEBATE IS LESS RESTRICTED IN THE SENATE THAN IN THE HOUSE

In the House, virtually all the time allotted for debate on a given bill is controlled by the bill’s sponsor and by its leading opponent. In almost every case, these two people are the committee chair and the ranking minority member of the committee that processed the bill—or those they designate. These two participants are, by rule and tradition, granted the power to allocate most of the debate time in small amounts to members who are seeking to speak for or against the measure. Preference in the alloca- tion of time goes to the members of the committee whose jurisdiction covers the bill.

The Filibuster I n the S enate, the leadership has much less contr ol o ver floor debate. Indeed, the S enate is unique among the world ’s legislativ e bodies for its commitment to unlimited debate. Once given the floor, a senator may speak as long as she wishes. O n a number of memorable occasions, senators hav e used the right to talk without interruption for as long as they want to prevent action on legislation they opposed. Through this tactic, called the filibuster, members of the S enate can prevent action on legislation they oppose b y continuously holding the floor and speaking until the majority backs do wn (or the filibustering senator gives up). A vote of thr ee-fifths of the Senate, or 60 v otes, is r equired to end a filibuster. This procedure to end a filibuster is called cloture. For much of American history, senators only rarely used the filibuster, though during the 1950s and ’60s, opponents of civil rights legislation often used filibusters to block its passage. In the last 20 years, the filibuster (or the mere threat of a filibuster) has become so common that observers routinely note that it takes 60 votes to get anything passed in the Senate. The 113th Congress (2013–15) set a new record, with 218 cloture votes (the vote to end a filibuster). The number fell to 192 in the 115th Congress (2017–19).27

In 2013 the D emocratic Senate leader Harry Reid (Nev.) mobilized his par ty to alter the filibuster rules for the first time in many decades. Frustrated by the repeated failure of the S enate to v ote on many of P resident Obama’s nominees to fill posi- tions in the executive branch, as well as judgeships to important federal courts, Reid invoked what senators had come to call “the nuclear option,” a change to the filibus- ter rules in the middle of the session b y simple majority vote. Under the new rules,

295rULES oF LAWMAk InG ExPLA In HoW A B I LL BECoMES A LAW

wtp12e_ess_ptr_ch09_274-313.indd 295 11/28/18 4:36 PM

nominees for ex ecutive branch appointments and federal cour t nominees—except the Supreme Cour t—cannot be filibustered, meaning that they can be appr oved by a simple majority v ote. (F ilibusters of legislation w ere still allo wed.) N ot surprisingly, the two parties had different views on the decision. Reid defended it as necessary, due to what he called “unbelievable, unprecedented obstruction.” Repub- licans denounced the new rule, stating, in the words of Pat Roberts (R-Kans.), “We have weakened this body permanently.”28 After winning control of both houses of Congress and the White House in 2016, however, Republicans expanded Reid’s rule to include S upreme Court justices and so w ere able to secur e the appointment of Justice N eil G orsuch, who would undoubtedly hav e been blocked b y S enate Democrats under the old r ules. Legislation is still subject to filibuster, though some Republicans, along with P resident Trump, have declared that it is time to bring an end to the filibuster altogether.

Voting Once debate is concluded on the floor of the House and the S enate, the leaders schedule it for a v ote on the floor of each chamber. By this time, congr es- sional leaders know what the vote will be; leaders do not bring legislation to the floor unless they are fairly certain it is going to pass. As a consequence, it is unusual for the leadership to lose a bill on the floor. On rare occasions, the last moments of the floor vote can be very dramatic as each party’s leadership puts its whip organization into action to make sure that wavering members vote with the party.

In 2015 the H ouse of R epresentatives failed to pass a spending bill to fund the Department of Homeland Security, hours before the agency was to run out of money and begin to shut down. Despite having a majority in the chamber and an early vote that suggested that the bill would pass easily , House GOP leaders failed to pr event the most conservative members of the party from suddenly abandoning the bill over objections that it left out pr ovisions to block P resident Obama’s executive actions on immigration. As midnight appr oached, the House agreed on a one-w eek exten- sion to keep the department open.29 Leaders later secured sufficient support to enact longer-term funding for Homeland Security. The importance of being able to attract wavering members with “pork” for their districts is one reason President Trump urged Congress in 2018 to restore earmarks, which have been banned since 2011.

CONFERENCE COMMITTEES RECONCILE HOUSE AND SENATE VERSIONS OF LEGISLATION

Getting a bill out of committee and through both houses of Congress is no guarantee that it will be enacted into law. Before a bill can be sent to the president, both houses must pass it in the identical form. F requently, bills that began with similar pr ovi- sions in both chambers emerge with little resemblance to each other. Alternatively, a bill may be passed b y one chamber but undergo substantial r evision in the other chamber. In such a case, a confer ence committee composed of the senior members of the committees or subcommittees that initiated the bill from both houses may be convened to iron out differences between the two pieces of legislation.

When a bill comes out of conference, it faces one more hurdle. Before it can be sent to the president for signing, the House–Senate conference committee’s version

296 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 296 11/28/18 4:36 PM

of the bill must be approved on the floor of each chamber. Usually such approval is given quickly. Occasionally, however, a bill ’s opponents use this r ound of approval as one last opportunity to defeat a piece of legislation. I n recent years, polarization in Congress has led to much less reliance on conference committees. Instead, leaders exchange amendments in hopes of reaching agreement.

THE PRESIDENT’S VETO CONTROLS THE FLOW OF LEGISLATION

Once adopted by the House and Senate, a bill goes to the president, who may choose to sign it into law or veto it. If the president neither signs nor vetoes it within 10 days and Congress is in session, the bill automatically becomes law . The veto is the presi- dent’s constitutional power to reject a piece of legislation. To veto a bill, the president returns it unsigned within 10 days to the house of Congr ess in which it originated. If Congress adjourns during the 10-day period, such that congressional adjournment prevents the president from returning the bill to Congress, the bill is also considered to be vetoed. This latter method is known as the pocket veto. Unlike a regular or return veto, a pocket-vetoed bill cannot be overridden; the bill simply dies. The possibility of a presidential veto affects how willing members of Congress are to push for different pieces of legislation at different times. If they think a proposal is likely to be vetoed, they might shelve it for a later time or alter it to suit the president’s preferences.

A presidential veto may be o verridden by a two-thir ds vote in both the H ouse and the Senate. Successful overrides are rare but are a blow to the president.

Several Factors Influence How Congress Decides

What determines the kinds of leg - islation that Congr ess ultimately produces? According to the simplest theories of r epresentation, members

of Congress respond to the vie ws of their constituents. I n fact, cr eating a legisla - tive agenda, drawing up a list of possible measur es, and deciding among them is a complex process in which a v ariety of influences from inside and outside go vern- ment play impor tant roles. External influences include a legislator’s constituency and various interest groups. Influences from inside government include party lead- ership, congressional colleagues, and the pr esident. Let us examine each of these influences individually and then consider how they interact to pr oduce congres- sional policy decisions.

CONSTITUENTS MATTER

Because members of Congress, for the most par t, want to be re-elected, we would expect the vie ws of their constituents to be a primar y influence on the decisions those legislators make. Yet most constituents pay little attention to politics and often

Analyze the factors that influence which laws Congress passes

297SEvErAL FACTorS InFLUEnCE HoW ConGrESS dEC IdES

wtp12e_ess_ptr_ch09_274-313.indd 297 11/28/18 4:36 PM

do not ev en know what policies their r epresentatives support. Nonetheless, mem- bers of Congress spend a lot of time worr ying about what their constituents think because these representatives realize that the choices they make may be scr utinized in a future election and used as ammunition b y an opposing candidate. Because of this possibility, members of Congress do try to anticipate their constituents’ policy views.30 In 2017, despite a personal effort by President Trump to persuade dissident Republicans, the House GOP leadership could not muster enough Republican votes to pass a measur e that would hav e repealed Obamacare. Some Republicans from swing districts fear ed upsetting constituents who fav ored Obamacare, while mor e conservative Republicans thought the bill did not go far enough in dismantling government-sponsored health insurance.

INTEREST GROUPS INFLUENCE CONSTITUENTS AND CONGRESS

Interest gr oups ar e another impor tant external influence on congressional poli - cies. Members of Congr ess pay close attention to inter est gr oups for a number of reasons: interest groups can mobilize constituents, serve as watchdogs on con- gressional action, and supply candidates with money. When members of Congress are making v oting decisions, those inter est groups that hav e some connection to constituents or that can mobilize followers in particular members’ districts are most likely to be influential.

Interest groups also hav e substantial influence in setting the legislative agenda and helping craft specific language in legislation. Today, sophisticated lobb yists win influence by providing information about policies, as well as campaign contri-

butions, to busy members of Congress. The $1.1 trillion end-of-year spending bill passed at the end of 2014 included an amendment exempting many finan- cial transactions fr om federal r egula- tion under the D odd-Frank A ct. The amendment language was taken fr om a bill originally written b y Citigr oup lobbyists, with 70 of 85 lines of the bill directly copying Citigroup’s language.31 After further lobbying by the banking industry, legislation enacted in 2018 loosened a number of D odd-Frank rules and ex empted r egional banks from a number of r emaining r ules. In recent years, interest groups have also begun to build br oader coalitions and comprehensive campaigns around par- ticular policy issues. These coalitions do not rise from the grass roots but instead

Representatives spend a lot of time meeting with constituents in their districts to explain how they have helped their district and learn what issues their constituents care about. Such meetings are often informal events at local restaurants or fairs, or town halls where constituents can ask questions. Here, Senator Chuck Grassley (R-Iowa) meets with constituents.

298 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 298 11/28/18 4:36 PM

are put together b y Washington lobb yists who launch compr ehensive lobb ying campaigns that combine simulated grassr oots activity with information and cam - paign funding for members of Congress.

Concerns that special inter ests exert too much influence led Congress to enact new ethics legislation in 2007. Now lobbyists are required to disclose the names of the individual contributors to these political donations. Although the new law pro- vides additional transparency, it does not fundamentally alter the fact that w ealthy interest groups continue to exercise tremendous influence in Congress.

Moreover, the large sums of cash raised b y S uper P ACs (political action committees)—discussed in Chapter 7—have introduced a whole new set of ques- tions about the r ole of special inter ests in politics, especially because donors to Super PACs can remain anonymous. Although they cannot openly coordinate with candidates, S uper PACs can endorse candidates b y name and ar e often r un b y people close to the candidates they support. In 2016, Super PACs poured unprec- edented sums of money into the race for president, but they also targeted key con- gressional contests in an effort to affect the balance of power between the par ties in Congress.

PARTY LEADERS RELY ON PARTY DISCIPLINE

In both the House and the Senate, party leaders have a good deal of influence over the behavior of their par ty members. This influence, sometimes called “party disci- pline,” was once so powerful that it dominated the lawmaking process. In the 1800s party leaders could often command the allegiance of more than 90 percent of their members. A vote in which half or more of the members of one party take one posi- tion while at least half of the members of the other party take the opposing position is called a party unity vote. At the beginning of the twentieth century, nearly half of all roll-call votes (votes in which each legislator ’s yes-or-no vote is recorded as the cler k calls the names of the members alphabetically) in the House of Representatives were party votes. While party voting is rarer today than a century ago, in the last decade it has been fairly common to find at least a majority of the Democrats opposing a majority of the Republicans on any given issue.

Typically, par ty unity is gr eater in the H ouse than in the S enate. House rules give more power to the majority par ty leaders, which giv es them mor e influence over House members. In the Senate, however, the leadership has fe w controls over its members. Party unity has been on the rise in recent years because the divisions between the par ties have deepened on many high-pr ofile issues such as abortion, affirmative action, the minimum wage, and school v ouchers (see F igure 9.6) and because the majority–minority par ty difference has been small. I n 2016, H ouse Democrats voted with the majority 96 per cent of the time, mar king an all-time high, at least in modern times. S enate Democrats voted with their caucus 92 per - cent of the time. R epublicans were also v ery united. In 2016, House Republicans voted with their par ty 96 per cent of the time, a r ecord high; S enate Republicans voted with their party 86 percent of the time, only five points below the record set in 2015.32

299SEvErAL FACTorS InFLUEnCE HoW ConGrESS dEC IdES

wtp12e_ess_ptr_ch09_274-313.indd 299 11/28/18 4:36 PM

Although party organization has w eakened since the turn of the tw entieth cen- tury, today’s party leaders still have resources to reward loyal members who vote with the party: (1) leadership PACs, (2) committee assignments, (3) access to the floor, (4) the whip system, (5) logrolling, and (6) the presidency.

Leadership PACs Leaders have increased their influence over members in recent years with aggressive use of leadership P ACs. Leadership PACs are organizations that members of Congr ess use to raise funds that they then distribute to other members of their par ty r unning for election. R epublican congr essional leaders pioneered the aggressive use of leadership PACs to win their congressional major- ity in 1995, and the practice has spread widely since that time. Money from lead- ership PACs can be dir ected to the most vulnerable candidates or to candidates who are having trouble raising money. They can also be used to influence primary

FIGURE 9.6

Party Unity Votes by Chamber Party unity votes are roll-call votes in which a majority of one party lines up against a majority of the other party. Party unity votes increase when the parties are polarized and when the party leadership can enforce discipline. Why did the percentage of party unity votes decline in the 1970s? Why has it risen in recent years?

SOURCES: “CQ Roll Call’s Vote Studies—2013 in Review,” http://media.cq.com/votestudies (accessed 6/9/14); Eliza Newlin Carney, “Standing Together against Any Action,” CQ Weekly (March 16, 2015); and “2015 Vote Studies: Party Unity Remained Strong,” CQ Weekly (February 8, 2016); Vital Statistics, “Table 8-3 Party Unity Votes in Congress, 1953-2016,” Brookings, May 21, 2018, www.brookings.edu/multi-chapter-report/vital-statistics-on-congress/ (accessed 11/9/18).

1955

House

Senate

PERCENTAGE OF ALL VOTES

1960 1965 1970 1975 1980 1985 1990 1995 2000 2005 2010 2015 2020

50

80%

70

60

40

30

20

During the 1970s, weaker party leadership was one reason that relatively few votes pitted the parties against one another.

Party unity votes have increased as partisan polarization in Congress has increased.

300 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 300 11/28/18 4:36 PM

elections. F or example, N ew York D emocratic senator Kirsten G illibrand has used her leadership P AC to pr omote D emocratic women candidates r unning for Congress. I n 2016 the PAC, which she named Off the S idelines, supplied funds to 61 candidates r unning for seats in the H ouse and 10 for the S enate, all of them women.33

Committee Assignments Party leaders can create debts among members by help- ing them get favorable committee assignments. These assignments are made early in the congressional careers of most members and normally ar e not taken fr om them if they later go against par ty discipline (although this does happen occasionally to punish disloyalty). Nevertheless, if the leadership goes out of its way to get the right assignment for a member, this effort is likely to create a bond of obligation that can be called upon without any other payments or favors. This is one reason the Repub- lican leadership gav e freshmen favorable assignments when the R epublicans took over Congress in 1995. When the D emocrats won contr ol of Congr ess in 2007, House Speaker Nancy Pelosi gave desirable and prestigious committee assignments to Democratic House members who faced competitive re-election races, to assist them in their home districts and increase their loyalty.

Access to the Floor The most important everyday resource available to the parties is control over access to the floor. With thousands of bills awaiting passage and most members clamoring for access in order to influence a bill or to publicize themselves, floor time is precious. F loor time is allocated in both houses of Congr ess by the majority and minority leaders. M ore important, the Speaker of the H ouse and the majority leader in the Senate possess the power of recognition—that is, they decide who may and may not speak on the floor. This authority is quite formidable and can be used to stymie a piece of legislation completely or to frustrate a member’s attempts to speak on a particular issue. Because the power is significant, members of Congress usually attempt to stay on good terms with the S peaker and the majority leader in order to ensure that they will continue to be recognized.

The Whip System S ome influence accrues to par ty leaders thr ough the whip system, which is primarily a communications network in each house of Congress for conv eying the leaders ’ wishes and plans to the members. B etween 12 and 20 assistant and r egional whips ar e selected to operate at the dir ection of the majority or minority leader and the whip . They take polls of all the members to learn their intentions on specific bills, enabling the leaders to know whether they have enough suppor t to allo w a v ote as w ell as whether the v ote is so close that they need to put pressure on undecided members. In those instances, the Speaker or a lieutenant will go to a few party members who have indicated they will switch if their vote is essential—an expedient that the leaders tr y to limit to a few times per session.

The whip system helps maintain party unity in both houses of Congr ess, but it is particularly critical in the House of Representatives because of the large number of legislators whose positions and v otes must be accounted for . The majority and

301SEvErAL FACTorS InFLUEnCE HoW ConGrESS dEC IdES

wtp12e_ess_ptr_ch09_274-313.indd 301 11/28/18 4:36 PM

minority whips and their assistants must be adept at inducing compr omise among legislators who hold widely differing viewpoints.

Since 2010, when R epublicans r etook control of the H ouse, the whip opera - tion has been faced with significant challenges from conservative members. In 2015 a small gr oup of conser vative R epublicans, organiz ed into the H ouse F reedom Caucus, r egularly disputed the positions of the par ty leadership . Frustrated with the lack of discipline, H ouse Majority Whip Steve Scalise (R-La.) expelled sev eral members from his whip team for failing to suppor t party positions.34 Indeed, con- flict with these rebellious Republicans prompted Speaker John Boehner to make the stunning announcement in September 2015 of his retirement from the speakership and from the House. In 2017, Republican House Speaker Paul Ryan (Wisc.) found that he sometimes needed D emocratic v otes to pass measur es because F reedom Caucus members would not vote with the rest of the Republicans.

Logrolling A legislative practice wherein agreements are made between legislators in voting for or against a bill is called logrolling. Unlike with bargaining, legislators who are logrolling have nothing in common but their desir e to ex change support. The agreement states, in effect, “You support me on bill X, and I’ ll support you on bill Y.” Since party leaders ar e the center of the communications networ ks in the two chambers, they can help members cr eate large logr olling coalitions. H undreds of logrolling deals are made each year, and it is the job of the leader and whips to keep track of who owes what to whom.

The Presidency O f all the influences that maintain the clarity of party lines in Congress, the influence of the presidency is probably the most impor tant. Indeed, the office is a touchstone of party discipline in Congress. Since the late 1940s, under President Harry Truman, presidents each year have identified a number of bills to

be considered part of their administration’s program. By the mid- 1950s, both parties in Congress began to look to the president

for these pr oposals, which became the most significant part of Congress’s agenda. The president’s suppor t is an impor - tant criterion for par ty loyalty, and party leaders are able to

use it to rally some members. Though President Trump was personally unpopular with many members of

Congress, legislators still looked to him to set the agenda and most of the major legislativ e initia- tives of 2017 and 2018, including bor der secu- rity, immigration, the repeal of Obamacare, and tax cuts originated in the White House.

In 2015 the most conservative factions of the Republican Party in Congress, frustrated that Speaker of the House John Boehner hadn’t been more effective against the Obama administration, pressured him to resign.

wtp12e_ess_ptr_ch09_274-313.indd 302 11/28/18 4:36 PM

PARTISANSHIP HAS THWARTED THE ABILITY OF CONGRESS TO DECIDE

Recent congresses have been notable for their inability to pass laws. The 114th Con- gress (2015–17), 113th Congr ess (2013–15), and the 112th Congr ess (2011–13) were the three least productive Congresses in modern history.35 In November 2013, Congress received the lowest levels of approval ever recorded in public opinion polls: 9 percent approval, when many high-profile bills failed to pass.36

In 2018, P resident Trump and congr essional leaders agr eed on a spending bill that pr ovided for incr eased defense and domestic social spending. Though the bill was opposed b y R epublican “deficit hawks” and b y some D emocrats who demanded legislation to pr otect undocumented immigrants, a majority of Republicans and mor e than 73 H ouse Democrats supported the legislation. I n the Senate, Rand Paul (R-Ky.) briefly filibustered the bill, but it was ultimately passed by a large majority and signed into law . By increasing overall spending levels, Trump and congressional leaders provided funding for programs that each party supported. The GOP got more money for the military and the Democrats won more money for domestic pr ograms. It was the sor t of classic logroll hated by ideological purists but necessary in a democratic legislature.

Congressional Polarization Congress’s frequent inability to decide r eflects the deep ideological differences that separate the two par ties. Efforts to measur e the ideological distance betw een the two par ties show that since the mid-1970s Republicans and Democrats have been diverging sharply and are now more polar- ized than at any time in the last centur y. Democrats have become mor e liberal and Republicans have become more conservative on issues related to the economy and the role of government.37 The Republican Party has experienced the gr eatest ideological shift, becoming sharply mor e conser vative. Moreover, because con - gressional districts are increasingly homogeneous in their ideology—in part due to gerrymandering but mainly because of natural clustering of the population—most members of Congress are in safe seats. Their constituents will not punish them for failing to compromise. Additionally, active mobilization by organizations on the right, such as the Club for Growth, means that Republican members of Congress who support compromises might be punished. These outside organizations have financed alternative candidates to challenge members who vote against the organ- izations’ positions.

Much Congressional Energy Goes to Tasks Other Than Lawmaking

In addition to the power to make the law, Congr ess has at its disposal an array of other instr uments thr ough which to influence the process of

Describe Congress’s influence over other branches of government

303ConGrESS IonAL EnErGy GoES To TASkS oTHEr THAn LAWMAk InG

wtp12e_ess_ptr_ch09_274-313.indd 303 11/28/18 4:36 PM

government. The Constitution gives the S enate the po wer to appr ove treaties and appointments. And Congress has a number of other po wers through which it can share with the other branches the capacity to administer the laws.

CONGRESS OVERSEES HOW LEGISLATION IS IMPLEMENTED

Oversight refers to the effort by Congress, through hearings, investigations, and other techniques, to ex ercise control over the activities of ex ecutive agencies. Ov ersight is carried out b y committees or subcommittees of the S enate or the H ouse, which conduct hearings and inv estigations to analyz e and ev aluate bureaucratic agencies and the effectiveness of their pr ograms. Their purpose may be to locate inefficien- cies or abuses of po wer, to explor e the r elationship between what an agency does and what a law intends, or to change or abolish a pr ogram. Most programs and agencies are subject to some o versight every year during the course of hearings on appropriations—that is, the amounts of money appr oved b y Congr ess in statutes (bills) that each unit or agency of government can spend.

Committees or subcommittees have the power to subpoena witnesses, administer oaths, cross-examine, compel testimony, and bring criminal charges for contempt (refusing to cooperate) and perjur y (lying). H earings and inv estigations resemble each other in many ways, but they differ on one fundamental point. A hearing is usually held on a specific bill, and the questions asked there are usually intended to build a r ecord with r egard to that bill. I n an inv estigation, the committee or subcommittee does not begin with a par ticular bill but examines a br oad area or problem and then concludes its investigation with one or more proposed bills.

Oversight hearings can ser ve as political tools. When par ty contr ol betw een Congress and the pr esident is divided, Congr ess is mor e likely to inv estigate the executive branch than when par ty contr ol is unified. The Select Committee on Benghazi, for example, formed in 2014 to inv estigate the deaths of four Ameri - can diplomats in Lib ya, became enmeshed in par tisan contention after H illary Clinton—secretary of state during the attacks—announced that she would r un for president. In 2015, as r evelations emerged that Clinton had used a priv ate email server during her tenur e as secr etary of state, the committee began to inv estigate whether appropriate procedures had been follo wed and whether national security was compr omised.38 When the FBI under took an inv estigation into the matter in 2016, FBI director J ames Comey recommended no criminal charges against Clinton but also questioned her judgment and called her actions “ extremely care- less.”39 Almost as soon as D onald Trump took office in 2017, Democrats called for inv estigations into allegations that the Trump administration had colluded with Russian operatives to help Trump win the 2016 election. Democrats demanded the appointment of a special counsel. Ov er the course of the inv estigation, the special counsel indicted several close Trump aides for improper contacts with Russian officials. Four of Trump’s former aides pleaded guilty to crimes r elated to the investigation.

304 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 304 11/28/18 4:36 PM

SPECIAL SENATE POWERS INCLUDE ADVICE AND CONSENT

The Constitution has given the Senate a special power, one that is not based on law- making. The president has the power to make treaties and to appoint top executive officers, ambassadors, and federal judges—but only “with the Advice and Consent of the S enate” (Ar ticle II, S ection 2). F or tr eaties, two-thirds of senators pr esent must concur; for appointments, a simple majority is required.

The power to approve or reject presidential requests includes the power to set conditions. The Senate only occasionally ex ercises its po wer to r eject treaties and appointments, and usually that is when opposite parties control the Senate and the White House.

IMPEACHMENT IS THE POWER TO REMOVE TOP OFFICIALS

The Constitution also grants Congress the po wer of impeachment o ver the pr esi- dent, vice president, top executive branch officials, and judicial officials. To impeach means the H ouse of R epresentatives charges a go vernment official (president or otherwise) with “ Treason, Bribery, or other high C rimes and M isdemeanors” and brings that person befor e Congress to determine guilt. I mpeachment is thus like a criminal indictment in which the House of Representatives acts like a grand jury, voting (by simple majority) on whether the accused ought to be impeached. If a majority of the House votes to impeach, an impeachment trial is conducted in and by the Senate, which acts like a trial jur y by voting whether to convict and remove the person from office (this vote requires a two-thirds majority of the Senate).

Controversy over Congr ess’s impeachment po wer has arisen o ver the gr ounds for impeachment, especially the meaning of “high C rimes and M isdemeanors.” It is generally understood that an impeachable offense could include commission of a crime, but also a non-criminal offense that constitutes an abuse of the powers of office. Some also note that “an impeachable offense is whatever the majority of the House of Representatives considers it to be at a given moment in history.”40 In other words, impeachment, especially impeachment of a president, is a political decision.

The political nature of impeachment was v ery clear in the two instances of presi dential impeachment that have occurred in American history. In 1867, Presi- dent Andr ew J ohnson, a southern D emocrat who had battled a congr essional Republican majority over Reconstruction, was impeached by the House but saved from conviction by one vote in the Senate. In 1998 the House of Representatives approved two ar ticles of impeachment against P resident B ill Clinton, accusing him of lying under oath and obstr ucting justice during the inv estigation of his affair with White House intern Monica Lewinsky. The vote was highly par tisan, with only five Democrats voting for impeachment on each charge. In the Senate, where a two-thir ds majority was needed to convict the pr esident, only 45 sena - tors voted to convict on the first count of lying and 50 voted to convict on the second charge of obstructing justice. As in the House, the vote for impeachment was highly partisan, with all Democrats and only five Republicans supporting the president’s ultimate acquittal.

305ConGrESS IonAL EnErGy GoES To TASkS oTHEr THAn LAWMAk InG

wtp12e_ess_ptr_ch09_274-313.indd 305 11/28/18 4:36 PM

Congress WHAT DO WE WANT? Much of this chapter has described the major institutional components of Congress and

has shown how they work as Congress makes policy. But what do these institutional

features mean for how Congress represents the American public? As we saw with Guy

Berkebile and Hazel Hoffman at the beginning of the chapter, congressional actions—and

inaction—have profound effects on Americans’ lives. does the organization of Congress

promote the equal representation of all Americans? or are there institutional features of

Congress that allow some interests more access and influence than others? What can we

learn from a tax cut that passes Congress and a CHIP reauthorization that almost fails?

When Congress is ineffective, American democracy suffers. As we have seen in this

chapter, prolonged stalemates in Congress have led to a reduction in America’s credit

rating and a costly government shutdown. Moreover, Americans have lost confidence

in Congress as it has lurched from crisis to crisis. Is it time for some major changes

to make Congress work better? disillusionment with congressional gridlock has led

some to say that the United States should become a parliamentary system, where the

winning party can enact the legislation it promised in its party platform. Such a system

is more accountable to voters and less prone to stalemate. But Americans would have

to jettison the presidency and become a unicameral body to operate as a true parlia-

mentary system, like that of Britain.

Changes in the way Congress conducts its business could also promote more

bipartisan decision-making. For example, former House Speaker John Boehner de-

cided that he would only bring legislation to the floor if a majority of republicans sup-

ported it. Speaker Paul ryan also followed the same practice. The “Hastert rule,” as

this practice is called could easily be abandoned, allowing bipartisan majorities to enact

legislation. Another significant change—eliminating the filibuster in the Senate—

would heighten partisan differences but ease gridlock. As we have seen, the Senate

voted to eliminate the filibuster for executive branch appointments and judicial candi-

dates (except for the Supreme Court) in 2013. Abandoning the filibuster altogether would

allow legislation to move more smoothly through the Senate. Will any of these changes—

or other measures—be adopted? Each carries risks to political parties and to politicians.

yet, gridlock also carries political risks, as the public grows frustrated with congressional

inaction on important policy areas. What areas of public policy might suffer if Congress

continues its inability to decide? How politicians weigh these different choices will shape

how—and whether—Congress fills its central position in American democracy.

Gridlock and bitter disagreements in Congress turn some Americans off to politics.

However, as the core representative institution of government, Congress is supposed

to represent all Americans. As the “Who Participates?” feature on the facing page

shows, the electorate that turns out to vote for Congress is on average older, whiter,

and more affluent than the average American.

306 CHAPTER 9 ConGrESS

wtp12e_ess_ptr_ch09_274-313.indd 306 11/28/18 4:36 PM

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO SOURCES: CNN House Exit Polls, www.cnn.com/election/2018/ exit-polls (accessed 11/12/18); U.S. Census Bureau, 2014 American Community Survey, www.census.gov/programs-surveys/acs/data.html (accessed 10/22/15).

WHO PARTICIPATES?

Women

Men

51%

49%

52%

48%

Gender U.S. pop. Electorate

18−29

30−44

22%

25%

13%

22%

45−64 34% 39%

65+ 19% 26%

Age U.S. pop. Electorate

White

Black

62%

13%

72%

11%

Latino 17% 11%

Asian 5% 3% $100−$200k 6% 25%

Other 3% 3%

Race U.S. pop. Electorate

Under $30k

$30−$50k

52%

20%

17%

21%

$50−$100k 20% 29%

Over $200k 2% 9%

Income U.S. pop. Electorate*

U.S. population

Electorate

2018 Voters as Compared with U.S. Population

*Numbers may not add up to 100 percent due to rounding.

Who Elects Congress?

wtp12e_ess_ptr_ch09_274-313.indd 307 11/28/18 4:36 PM

Practice Quiz

1. Which of the following is a way in which the House and the Senate are different? (p. 278) a) Senators are more interested in

doing what their constituents want right now, while members of the House have more time to consider “new ideas” and bring together new coalitions of interests.

b) Members of the House are more interested in doing what their con- stituents want right now, while sen- ators have more time to consider “new ideas” and to bring together new coalitions of interests.

c) Senators serve smaller and more homogeneous constituencies than members of the House.

d) Senators are often more attuned to the legislative needs of local interest groups than members of the House.

e) There are no important differences between the House and the Senate.

2. Which type of representation is described when constituents have the power to hire and fire their representative? (p. 278) a) agency representation b) sociological representation c) philosophical representation d) ideological representation e) economic representation

Know Your Members of Congress

WHAT YOU CAN DOWHAT YOU CAN DOWHAT YOU CAN DO

Vote in the next congressional election. If you haven’t registered, see page 242 for instructions on how to do so.

Discover what bills are currently under consideration in Congress by visiting www.congress.gov.

Contact your member of Congress to state your opinion. Go to www.house.gov and enter your ZIP code to �nd your representative. Go to www.senate.gov and �nd your state in the drop-down menu to �nd your two U.S. senators.

308 STUdy GU IdE

wtp12e_ess_ptr_ch09_274-313.indd 308 11/28/18 4:36 PM

3. Which of the following statements best describes the social composition of the U.S. Congress? (pp. 279–80) a) The majority of representatives

do not have university degrees. b) Men and women are equally

represented in Congress. c) Most members of Congress

do not affiliate with any specific religion.

d) The legal profession is the domi- nant career of most members of Congress prior to their election.

e) The number of African American, Latino, and Asian American repre- sentatives has decreased over the last 20 years.

4. Which of the following is an advantage that incumbents have in winning re-election? (p. 282) a) Challengers are not legally allowed

to spend more money campaigning than incumbents.

b) Incumbents can provide constitu- ency services during their tenure in office.

c) Term limits for incumbents mean they always know when an election will be their last.

d) The Supreme Court has ruled that a district cannot be redrawn while an incumbent remains in office.

e) Incumbents have no advantage over challengers in winning office.

5. The Supreme Court has ruled that (p. 285) a) only the House of representatives

has the constitutional authority to redraw congressional district lines

b) race can be the predominant factor in drawing congressional districts.

c) race cannot be the predominant factor in drawing congressional districts.

d) states can forgo the redistricting process if they lose more than 10 percent of their population between censuses.

e) only the Senate has the constitu- tional authority to redraw congres- sional district lines

6. An “earmark” is (p. 286) a) a rule in the House of representa-

tives that limits who can be heard during legislative debates.

b) a congressional district drawn to advantage candidates from a certain racial or ethnic group.

c) a law that grants some special privilege or exemption to a single individual.

d) language inserted into a bill by a member of Congress that provides special benefits for the member of Congress’s constituents.

e) a weekly, informal meeting between members of Congress and their constituents.

7. Which of the following types of committees includes members of both the House and the Senate on the same committee? (p. 291) a) standing committee b) conference committee c) select committee d) All committees include both House

members and senators. e) no committees include both House

members and senators.

8. Which of the following statements about the filibuster is most accurate? (p. 295) a) The filibuster was first used in 1975. b) The votes of 67 senators are cur-

rently required to end a filibuster. c) The filibuster was used far more

frequently in the 1930s and 1940s than it has been in the last two decades.

d) nominees for positions in the exec- utive branch and the federal courts cannot currently be filibustered.

e) Filibusters were declared unconsti- tutional by the Supreme Court in 2013.

9. Members of Congress take their constituents’ views into account because (p. 298) a) the Supreme Court can invalidate

laws passed without majority support in the public.

b) interest groups are forbidden from lobbying during legislative votes.

309STUdy GU IdE

wtp12e_ess_ptr_ch09_274-313.indd 309 11/28/18 4:36 PM

Key Terms

agency representation (p. 278) a type of representation in which a representative is held accountable to a constituency if he or she fails to represent that constituency properly; this is incentive for the represent- ative to provide good representation when his or her personal backgrounds, views, and interests differ from those of his or her constituency

apportionment (p. 283) the process, occurring after every decennial census, that allocates congressional seats among the 50 states

appropriations (p. 304) the amounts of money approved by Congress in statutes (bills) that each unit or agency of government can spend

bicameral (p. 277) having a legislative assembly composed of two chambers or houses; distinguished from unicameral

bill (p. 293) a proposed law that has been sponsored by a member of Congress and submitted to the clerk of the House or Senate

c) most constituents pay close attention to what’s going on in Congress at all times.

d) they worry that their voting record will be scrutinized at election time.

e) they can be impeached if they go against their constituents’ policy preferences.

10. Which of the following is not a resource that party leaders in Congress use to create party discipline? (p. 299) a) leadership PACs b) committee assignments c) access to the floor d) the whip system e) party unity votes

11. An agreement between members of Congress to trade support for each other’s bills is known as (p. 302) a) oversight. b) filibuster. c) logrolling. d) patronage. e) cloture.

12. Congressional polarization (p. 303) a) has decreased since the mid-1970s. b) has increased since the mid-1970s. c) has remained the same since the

mid-1970s. d) has been driven entirely by

democrats becoming more liberal since the mid-1970s.

e) has not been measured since the mid-1970s.

13. When Congress conducts an inves- tigation to explore the relationship between what a law intended and what an executive agency has done, it is engaged in (p. 304) a) oversight. b) advice and consent. c) appropriations. d) executive agreement. e) direct patronage.

14. Which of the following statements about impeachment is not true? (p. 305) a) The president is the only official

who can be impeached by Congress.

b) Impeachment means to charge a government official with “Treason, Bribery, or other high Crimes and Misdemeanors.”

c) The House of representatives decides by simple majority vote whether the accused ought to be impeached.

d) The Senate decides whether to convict and remove the person from office.

e) There have only been two instances of presidential impeachment in American history.

310 STUdy GU IdE

wtp12e_ess_ptr_ch09_274-313.indd 310 11/28/18 4:36 PM

caucus (political) (p. 289) a normally closed political party business meeting of citizens or lawmakers to select candidates, elect officers, plan strategy, or make decisions regarding legislative matters

cloture (p. 295) a rule or process in a leg- islative body aimed at ending debate on a given bill; in the U.S. Senate, 60 senators (three-fifths) must agree in order to impose a time limit and end debate

conference (p. 289) a gathering of House republicans every two years to elect their House leaders; democrats call their gathering the caucus

conference committees (p. 291) joint com- mittees created to work out a compromise on House and Senate versions of a piece of legislation

constituency (p. 277) the residents in the area from which an official is elected

filibuster (p. 295) a tactic used by members of the Senate to prevent action on legisla- tion they oppose by continuously holding the floor and speaking until the majority backs down; once given the floor, sena- tors have unlimited time to speak, and it requires a vote of three-fifths of the Senate to end a filibuster

gerrymandering (p. 285) the apportionment of voters in districts in such a way as to give unfair advantage to one racial or ethnic group or political party

impeachment (p. 305) the formal charge by the House of representatives that a government official has committed “Treason, Bribery, or other high Crimes and Misdemeanors”

incumbency (p. 282) holding the political office for which one is running

joint committees (p. 291) legislative com- mittees formed of members of both the House and Senate

logrolling (p. 302) a legislative practice whereby agreements are made between

legislators in voting for or against a bill; vote trading

majority leader (p. 289) the elected leader of the majority party in the House of representatives or in the Senate; in the House, the majority leader is subordinate in the party hierarchy to the Speaker of the House

minority leader (p. 289) the elected leader of the minority party in the House or Senate

oversight (p. 304) the effort by Congress, through hearings, investigations, and other techniques, to exercise control over the activities of executive agencies

party unity vote (p. 299) a roll-call vote in the House or Senate in which at least 50 percent of the members of one party take a particular position and are opposed by at least 50 percent of the members of the other party

patronage (p. 286) the resources available to higher officials, usually opportunities to make partisan appointments to offices and to confer grants, licenses, or special favors to supporters

pocket veto (p. 297) a presidential veto that is automatically triggered if the president does not act on a given piece of legislation passed during the final 10 days of a legisla- tive session

pork-barrel legislation (or pork) (p. 286) appropriations made by legislative bodies for local projects that are often not needed but that are created so that local representatives can win re-election in their home districts

private bill (p. 287) a proposal in Congress to provide a specific person with some kind of relief, such as a special exemption from immigration quotas

redistricting (p. 284) the process of redraw- ing election districts and redistributing legislative representatives; this happens every 10 years to reflect shifts in popula- tion or in response to legal challenges to existing districts

311STUdy GU IdE

wtp12e_ess_ptr_ch09_274-313.indd 311 11/28/18 4:36 PM

roll-call vote (p. 299) a vote in which each legislator’s yes-or-no vote is recorded as the clerk calls the names of the members alphabetically

select committees (p. 290) (usually) tem- porary legislative committees set up to highlight or investigate a particular issue or address an issue not within the jurisdiction of existing committees

seniority (p. 291) the ranking given to an individual on the basis of length of continu- ous service on a committee in Congress

sociological representation (p. 278) a type of representation in which representatives have the same racial, gender, ethnic, religious, or educational backgrounds as their constitu- ents. It is based on the principle that if two individuals are similar in background, char- acter, interests, and perspectives, then one can correctly represent the other’s views

Speaker of the House (p. 289) the chief presiding officer of the House of

representatives; the Speaker is the most important party and House leader and can influence the legislative agenda, the fate of individual pieces of legislation, and members’ positions within the House

standing committee (p. 289) a permanent committee with the power to propose and write legislation that covers a particular subject, such as finance or agriculture

term limits (p. 283) legally prescribed limits on the number of terms an elected official can serve

veto (p. 297) the president’s constitutional power to prevent a bill from becoming a law; a presidential veto may be overrid- den by a two-thirds vote of each house of Congress

whip (p. 289) a party member in the House or Senate responsible for coordinating the party’s legislative strategy, building support for key issues, and counting votes

312 STUdy GU IdE

wtp12e_ess_ptr_ch09_274-313.indd 312 11/28/18 4:36 PM

deering, Christopher, and Steven S. Smith. Committees in Congress. 3rd ed. Washington, dC: CQ Press, 1997.

dodd, Lawrence, and Bruce I. oppenheimer, eds. Congress Reconsidered. 11th ed. Washington, dC: CQ Press, 2016.

dodson, debra L. The Impact of Women in Congress. new york: oxford University Press, 2006.

Fenno, richard F. Homestyle: House Members in Their Districts. Boston: Little, Brown, 1978.

Fiorina, Morris. Congress: Keystone of the Washington Establishment. 2nd ed. new Haven, CT: yale University Press, 1989.

Fisher, Louis. On Appreciating Congress. Boulder, Co: Paradigm Publishers, 2010.

koger, Gregory. Filibustering: A Political History of Obstruction in the House and Senate. Chicago: University of Chicago Press, 2010.

Mann, Thomas E., and norman J. ornstein. It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism. new york: Basic Books, 2012.

Mayhew, david r. Congress: The Electoral Connection. new Haven, CT: yale University Press, 1974.

Palmer, Barbara, and denise Simon. Breaking the Political Glass Ceiling: Women and Congressional Elections. 2nd ed. new york: routledge, 2008.

Sinclair, Barbara. Unorthodox Lawmaking. 5th ed. Washington, dC: CQ Press, 2016.

Spitzer, robert J. President and Congress. new york: McGraw-Hill, 1993.

Tate, katherine. Concordance: Black Lawmaking in the U.S. Congress from Carter to Obama. Ann Arbor: University of Michigan Press, 2014.

For Further Reading

313STUdy GU IdE

wtp12e_ess_ptr_ch09_274-313.indd 313 11/28/18 4:36 PM

The Presidency WHAT GOVERNMENT DOES AND WHY IT MATTERS Kevin Hartley of Tennessee was 21 years old in April 2017 when he collapsed and

died from cardiac arrest after using methylene chloride to strip paint from

a bathtub during a renovation job. Although the chemical was associated

with dozens of deaths dating back to the 1940s, the Environmental Protec-

tion Agency, established in 1970, had lacked the regulatory teeth to remove

such widely available products from the market. Wendy Cleland-Hamnett,

the EPA’s top official overseeing pesticides and toxic chemicals, lamented,

“How is it possible that you can go to a home improvement store and buy a

paint remover that can kill you?”1

In summer 2016, Congress passed and President Obama signed a

reform of the Toxic Substances Control Act of 1976, giving the EPA more

power to regulate toxic chemicals. Passed with bipartisan support, the

new law required the EPA to evaluate both new and existing chemicals,

including the ten most toxic chemicals in wide use. In the last days of the

Obama administration in January 2017, after ten years of research, the

101010 chapter

wtp12e_ess_ptr_ch10_314-345.indd 314 11/28/18 4:36 PM

The Presidency

While presidents inherit policies and regulations implemented during previous administrations, they are empowered to reverse or alter them according to their beliefs. As a former businessman, President Trump rejected the regulations put in place by the Obama administration that could put restraints on some businesses.

EPA proposed banning certain uses of methylene chloride, especially by

ordinary consumers and non-industrial businesses.

But as presidential administrations switched from Obama to Trump, these

new rules remained mere proposals. As a candidate Donald Trump said

that he wanted to eliminate two regulations for every one that his agencies

enacted. And when the Trump administration took office in January 2017, it

froze rules and proposed regulations across government, including those at

the EPA. Kevin Hartley died three months later.

The Trump EPA did release new rules about toxic chemicals in the summer

of 2017. They were written by Nancy Beck, a toxicologist who, between stints

at the EPA under Presidents George W. Bush and Trump, had worked for the

American Chemistry Council, contesting EPA regulations over what she called

“phantom risks.” The new rules reflected changes that had been requested

by the chemical industry and did not include a ban on methylene chloride. The

new leadership at the EPA also overturned Ms. Hamnett’s recommendation

to ban the use of the pesticide chlorpyrifos, associated with developmental

315

wtp12e_ess_ptr_ch10_314-345.indd 315 11/28/18 4:36 PM

disabilities in children, and undermined tracking of the health effects of a chemical

once used in nonstick pans associated with birth defects and kidney cancer.

Recognizing that the agency’s leadership was going in a different direction,

Hamnett, who had worked for the EPA since 1979, under presidents of both

parties, announced her retirement. “It’s time for me to go.” In the face of

continued public concern over toxic paint strippers, then-EPA head Scott Pruitt

indicated in May 2018 that the agency would implement the methylene chlo-

ride ban. But months of inaction passed, and in October 2018 a coalition of

consumer groups threatened to sue the EPA for delaying the ban after four

more people died.

In this chapter, we examine the foundations of the American presidency

and assess the origins and character of presidential power. Presidents are

empowered by democratic political processes and, increasingly, by their ability

to control and expand the institutional resources of the office. They sit atop

the executive branch, a large bureaucracy of departments and agencies such

as the EPA. They influence policy with their appointments to the Cabinet, the

White House staff, and to the Executive Office of the President, choosing

officials who are sympathetic to their policy goals and using regulatory re-

view as with the EPA and executive orders to make policy. They set the tone

for government as well, as the sole elected official representing the entire

country. But, as we will see, presidential power is not without limit, nor should

it be. The U.S. Constitution emphasizes checks and balances among the

branches of government, not unlimited power. The framers thought a powerful

and energetic president would make the U.S. government more effective but

knew that presidential power needed to be subject to constraints to prevent

it from becoming a threat to citizens’ liberties.

★ Outline the powers the Constitution gives the president (pp. 317–27)

★ Identify the institutional resources presidents have to help them exercise their powers (pp. 327–31)

★ Explain how modern presidents have become even more powerful (pp. 331–40)

CHAPTER GOALS

316 CHAPTER 10 THE PRES IDENCy

wtp12e_ess_ptr_ch10_314-345.indd 316 11/28/18 4:36 PM

Presidential Power Is Rooted in the Constitution

The presidency was established b y Article II of the Constitution, which begins b y asser ting “The executive power shall be v ested in a P resident

of the U nited States of America. ” The president’s executive power is underscor ed in Section 3 of Article II, which confers upon the president the duty to “take care that the laws be faithfully ex ecuted.” The president’s oath of office at the end of Section 1, moreover, obligates—and thus empowers—the chief executive to “preserve, protect and defend the Constitution of the U nited S tates.” This language seems to require the pr esident to take action if constitutional go vernment is thr eatened. President Abraham Lincoln cited his oath of office as justification for suspending the writ of habeas corpus at the star t of the Civil War. He declared that his oath would be broken if the government was overthrown. Suspension of the writ, he said, was necessary to prevent that calamity fr om taking place. B y vesting the executive power in the president, Article II also implies that the pr esident serves as America’s head of state and is, ther efore, entitled to special defer ence and r espect. On the basis of Article II, presidents have three types of powers. These are called the

Outline the powers the Constitution gives the president

Abraham Lincoln, like many other presidents, cited the presidential oath of office as providing the president with the authority to take all the necessary actions to protect the nation.

317PRES IDENT IAl POWER IS ROOTED IN THE CONST I TUT ION

wtp12e_ess_ptr_ch10_314-345.indd 317 11/28/18 4:36 PM

expressed po wers of the office, implied powers, and delegated po wers. A four th type of power claimed by presidents does not appear in Article II. This is called the inherent power of the office.

EXPRESSED POWERS COME DIRECTLY FROM THE WORDS OF THE CONSTITUTION

The expressed powers of the pr esidency are those specifically established by the lan- guage of the Constitution. These fall into several categories:

1. Military. Ar ticle II, S ection 2, pr ovides for the po wer as “Commander in Chief of the Army and N avy of the U nited States, and of the M ilitia of the several States, when called into the actual Service of the United States.”

2. Judicial. Ar ticle II, S ection 2, also pr ovides the po wer to “ grant R eprieves and P ardons for Offenses against the United S tates, ex cept in Cases of Impeachment.”

3. Diplomatic. Article II, S ection 2, also pr ovides the po wer “by and with the Advice and Consent of the S enate, to make Treaties.” Article II, S ection 3, provides the power to “receive Ambassadors and other public Ministers.”

4. Executive. Article II, S ection 3, authoriz es the pr esident to see to it that all the laws are faithfully executed; Section 2 gives the chief executive the power to appoint, r emove, and super vise all ex ecutive officers and to appoint all federal judges.

5. Legislative. Article I, Section 7, and Article II, Section 3, give the president the power to participate authoritatively in the legislative process.

Military The president’s military powers are among the most important exercised by the chief ex ecutive. The position of commander in chief makes the pr esident the highest military authority in the U nited States, with contr ol of the entir e defense establishment. The president also dir ects the nation ’s intelligence networ k, which includes not only the Central I ntelligence Agency (CIA) but also the N ational Security Council (NSC), the National Security Agency (NSA), the Federal Bureau of Investigation (FBI), and a host of less w ell-known but very powerful international and domestic security agencies.

Military Sources of Domestic Power The president’s military powers extend into the domestic sphere. Article IV, Section 4, provides that the “United States shall [protect] every State . . . against Invasion . . . and . . . domestic Violence,” and Congress has made this an explicit presidential power through statutes directing the president as commander in chief to discharge these obligations. 2 The Constitution restrains the president’s use of domestic for ce by providing that a state legislatur e (or gover- nor, when the legislatur e is not in session) must r equest federal tr oops before the president can send them into the state to provide public order. Yet this proviso is not absolute. F irst, presidents are not obligated to deplo y national tr oops merely because the state legislature or governor makes such a request. More important, the

318 CHAPTER 10 THE PRES IDENCy

wtp12e_ess_ptr_ch10_314-345.indd 318 11/28/18 4:36 PM

president may deplo y troops in a state or city without a specific request from the state legislature or go vernor if the pr esident considers it necessar y to maintain an essential national ser vice during an emergency , enforce a federal judicial or der, or protect federally guaranteed civil rights.

One example of the unilateral use of pr esidential emergency power, even when the state didn ’t r equest it, was the decision b y P resident Dwight E isenhower in 1957 to send troops into Little Rock, Arkansas, to enforce court orders to integrate Little Rock’s Central H igh School. The governor of Ar kansas, Orval Faubus, had actually posted the Arkansas National Guard at the entrance of Central H igh School to prevent the court-ordered admission of nine black students. After an effort to negotiate with G overnor Faubus failed, P resident E isenhower r eluctantly sent 1,000 paratroopers to Little Rock, who stood watch while the black students took their places in the all-white classrooms.

In most instances of domestic disor der, whether fr om human or fr om natu - ral causes, presidents sometimes exercise unilateral power by declaring a “state of emergency,” as P resident Trump did in r esponse to the thr ee hurricanes striking the United States in 2017, ther eby making available federal grants, insurance, and direct aid.

Judicial The presidential power to grant r eprieves, pardons, and amnesty inv olves the power of life and death over all individuals who may be a threat to the security of the United States. Presidents may use this power on behalf of a particular individual,

One of the president’s responsibilities is the maintenance of public order. President Eisenhower used this to justify sending troops to Little Rock, Arkansas, to enforce racial integration of public schools.

319PRES IDENT IAl POWER IS ROOTED IN THE CONST I TUT ION

wtp12e_ess_ptr_ch10_314-345.indd 319 11/28/18 4:36 PM

as did G erald Ford when he par doned Richar d N ixon in 1974 “for all offenses against the United States which he . . . has committed or may have committed.” Or they may use it on a large scale, as did P resident Andrew Johnson in 1868, when he gave full amnesty to all southerners who had par ticipated in the “Late Rebellion.” Presidents’ use of the pardon power can be very controversial. Presi- dent Trump was criticiz ed for par doning former Ariz ona sheriff Joe Arpaio in 2017 after Arpaio was found guilty in federal cour t of criminal contempt for ignoring a court order that directed his office to halt illegal racial profiling prac- tices. The pardon was criticiz ed because Trump did not first consult with the Justice Department’s office of pardons, as is customary, and because it was issued before Arpaio had been sentenced.3

Diplomatic The president is America ’s “head of state, ” its chief r epresentative in dealings with other nations, having the power to make treaties for the United States (with the advice and consent of the S enate) as w ell as the po wer to “ recognize” other countries. D iplomatic r ecognition means that the U nited S tates ackno wl- edges a government’s legitimacy and territorial claims. In 2015, President Obama restored American diplomatic ties with Cuba, which had been severed by President Eisenhower in 1961 after the U nited S tates’ r elations with the Castr o r egime deteriorated. In 2017, after sev eral staffers at the U.S. embassy in Cuba demon- strated neurological symptoms after being exposed to strange sounds, some blamed these “sonic attacks” on the Cuban government, which prompted President Trump to revisit newly restored American ties with Cuba. In 2018, President Trump met with N orth K orean leader Kim J ong-un in an effort to defuse tensions on the Korean Peninsula. Earlier in the y ear North K orea and America had ex changed threats in the wake of North Korean nuclear missile tests.

In recent years, presidents hav e expanded the practice of using execu- tive agreements instead of tr eaties to establish r elations with other countries. 4

An executive agreement is exactly like a treaty because it is a contract betw een two countries that has the for ce of a treaty, but it does not r equire S enate approval. O rdinarily, ex ecutive agr ee- ments are used to carry out commitments already made in tr eaties or laws or to arrange for matters w ell belo w the lev el of policy . B ut when pr esidents hav e found it expedient to use an ex ecutive agreement in place of a tr eaty, Congress has typically acquiesced.

Executive Power The most important basis of the president’s power as chief exec- utive is to be found in Ar ticle II, Section 3, which stipulates that the president must see that all the laws are faithfully executed, and

As the head of state, the president is America’s chief representative in dealings with other countries. Here, President Trump meets with North Korea’s Supreme Leader Kim Jong-un in 2018 to discuss nuclear disarmament on the Korean Peninsula.

320 CHAPTER 10 THE PRES IDENCy

wtp12e_ess_ptr_ch10_314-345.indd 320 11/28/18 4:36 PM

Section 2, which pr ovides that the pr esident will appoint and super vise all executive officers and appoint all federal judges (with Senate approval; after some early controversy, presidents’ sole power to remove executive branch officials was accepted). The power to appoint the principal ex ecutive officers and to require each of them to r eport to the pr esident on subjects r elating to the duties of their departments makes the pr esident the true chief executive officer (CEO) of the nation. I n this manner , the Constitution focuses executive po wer and legal r esponsibility on the pr esident. The president is subject to some limita - tions because the appointment of all such officers, including ambassadors, ministers, and federal judges, is subject to majority appr oval by the Senate. But these appointments ar e at the discr etion of the president, and these appointees are generally loyal to the president.

Legislative Power Two constitutional pr ovisions are the primar y sources of the president’s po wer in the legislativ e ar ena. The first of these is the provision in Article II, Section 3, that the president “shall from time to time give to the Congress Information of the S tate of the U nion, and r ecommend to their Consideration such Measures as he shall judge necessary and expedient.”

Delivering a State of the Union address may at first appear to be little more than the president’s obligation to make r ecommendations for Congr ess’s consideration. But as political and social conditions began to fav or an incr easingly pr ominent presidential role, each president began to rely on this provision in order to become the primary initiator of proposals for congressional action and the principal sour ce for public awareness of national issues.5

The second of the president’s legislative powers is the veto power assigned by Arti- cle I, Section 7.6 The veto power is the president’s constitutional power to prevent a bill from becoming a law (see Figure 10.1). It makes the president the single most important legislativ e leader .7 N o bill v etoed b y the pr esident can become law unless both the H ouse and the S enate override the v eto by a two-thir ds vote. In the case of a pocket veto, Congress does not hav e the option of o verriding the v eto but must r eintroduce the bill in the ne w Congress. A pocket v eto is a pr esidential veto that is automatically triggered if the president does not act on a given piece of legislation passed during the final 10 days of a legislative session. U sually, if a president does not sign a bill within 10 days, it automatically becomes law. But this is tr ue only while Congr ess is in session. I f a pr esident chooses not to sign a bill presented within the last 10 days of a legislative session and Congress is out of session when the 10-day limit expires such that returning the bill to Congress is not possible, the bill is vetoed and dies.

Use of the v eto varies according to the political situation each pr esident confronts. Ten of P resident Obama’s 12 v etoes occurr ed during his last two y ears in office, when Republicans held the majority in both Houses. The veto power is effective: more than 90 percent of all vetoes in history have been upheld.

Although not explicitly stated, the Constitution implies that the pr esident has the power of legislative initiative—the president’s implied po wer to bring a legisla - tive agenda befor e Congress. Initiative implies the ability to formulate pr oposals

321PRES IDENT IAl POWER IS ROOTED IN THE CONST I TUT ION

wtp12e_ess_ptr_ch10_314-345.indd 321 11/28/18 4:36 PM

for important policies, and the president, as an individual with a gr eat deal of staff assistance, is able to initiate decisiv e action mor e frequently than Congr ess, with its large assemblies that hav e to deliberate and debate befor e taking action. With some important exceptions, Congress depends on the president to set the agenda of public policy . For example, during the w eeks follo wing S eptember 11, 2001, George W. Bush took many presidential initiatives to Congress, and each was given nearly unanimous support.

FIGURE 10.1

The Veto Process *PL = public law; 107 = number of Congress (107th was 2000–01); 999 = number of the law.

Bill passes Congress

Presented to the

president

Bill dies (pocket veto)

No action after 10 working days

while Congress is adjourned

• Ofce of Management and Budget

party

Bill reviewed by • Special assistants

• Relevant department head • Key legislative leaders in president’s

• Key lobbyists close to president • Justice Department

Bill acceptable to the president

Veto recommended,

goes to

• Staff assistants • Relevant department • Speechwriters

Veto

Returned to Congress. Override requires two-thirds

vote of both houses

Bill becomes law and is given legal

designation (e.g., PL-107-999*)

President signs, usually in a public ceremony in

presence of key sponsors and supporters. Several

pens are used as souvenirs

Bill lives

Bill dies

Override

Failure to override

No action after 10 working days while Congress is

in session

322 CHAPTER 10 THE PRES IDENCy

wtp12e_ess_ptr_ch10_314-345.indd 322 11/28/18 4:36 PM

IMPLIED POWERS DERIVE FROM EXPRESSED POWERS

The list of expressed presidential powers is brief , but each expr essed power has become the foundation of a second set of presidential powers, the so-called implied powers of the office. An implied power is one that can be said to be necessar y to allow presidents to ex ercise their expr essed power. For example, the Constitu - tion expressly gives the president the power to appoint “all other officers of the United States . . . which shall be established by law.” Article II does not, however, expressly grant the pr esident the po wer to r emove such officials from office. There is no r eason to assume that the po wer to appoint necessarily indicates the power to remove an official. From the earliest years of the Republic, though, presidents claimed that the r emoval po wer was implied b y the appointment power. The Supreme Cour t ev entually agr eed that pr esidents did hav e sole removal power.

Presidents have also made much of the v ery first sentence of Article II, which declares, “The executive power shall be vested in a President of the United States of America.” This grant of power along with the subsequent admonition to presidents to see to it that the laws ar e faithfully ex ecuted, as w ell as the pr esident’s oath of office, have been cited b y successive White Houses as justifications for actions not expressly sanctioned by the Constitution.

In recent years, the vesting clause has been said by some to support what has come to be known as the “theory of the unitary executive.”8 Unitary executive theory holds that all executive power inheres in the president except as explicitly limited b y the Constitution. 9 Thus, according to this vie w, the pr esident is subject only to expressly stated restraints, such as Congr ess’s control of reve- nues, its impeachment po wer, and its po wer to o verride presidential v etoes. Proponents of unitary executive theory also maintain that presidents have their own power to interpret the Constitution as it applies to the executive branch and need not necessarily defer to the judiciar y. This claim was adv anced by President George W. Bush when he signed a D efense Appropriation Bill that included language intr oduced b y S enator J ohn M cCain barring the use of torture on terrorist suspects. In his signing statement, Bush declared that he would construe the portion of the Act relating to the treatment of detainees “in a manner consistent with the constitutional authority of the P resident to super vise the unitar y ex ecutive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial po wer.”10 The president was claiming, in other words, that particularly in the military realm, he possessed sole authority to ex ecute acts of Congr ess according to his o wn understanding of the law.

Unitary executive theory particularly holds that the president controls all policy making b y the ex ecutive branch, and that neither Congr ess nor the cour ts may intervene. But the principle of constitutional checks and balances would appear to provide Congress with po wers over the many impor tant agencies of the ex ecutive branch through “congressional oversight” of the ex ecutive arising fr om Congress’s Article I powers. Thus, the stage is set for conflict between the implied powers of Congress and those of the president.

323PRES IDENT IAl POWER IS ROOTED IN THE CONST I TUT ION

wtp12e_ess_ptr_ch10_314-345.indd 323 11/28/18 4:36 PM

DELEGATED POWERS COME FROM CONGRESS

Many of the po wers exercised by the pr esident and the ex ecutive branch ar e not found in the Constitution but ar e delegated powers, the pr oducts of congr essional statutes (laws) and r esolutions. Ov er the past centur y, Congr ess has v oluntarily delegated a great deal of its o wn legislative authority to the ex ecutive branch. This delegation of power has been an almost inescapable consequence of the expansion of government activity in the United States since the New Deal. Given the vast range of the federal government’s responsibilities, Congress cannot execute and administer all the pr ograms it creates and the laws it enacts. Inevitably, Congress must turn to the hundr eds of depar tments and agencies in the ex ecutive branch or, when necessary, create new agencies to implement its goals. Thus, for example, in 2002, when Congress sought to protect America from terrorist attacks, it established the D epartment of H omeland S ecurity with br oad po wers in the r ealms of law enforcement, public health, and immigration.

MODERN PRESIDENTS HAVE CLAIMED INHERENT POWERS

Presidents have claimed a four th source of po wer beyond expressed, implied, and delegated powers. These are powers not specified in the Constitution but said to stem from the “rights, duties and obligations of the pr esidency.” They are referred to as the inherent powers and are most often asserted by presidents in times of war or national emergency.

President Lincoln relied upon a claim of inherent power to raise an army after the fall of Fort Sumter. Similarly, Presidents Roosevelt (World War II), Truman (Korean War), and both P residents B ush (P ersian G ulf and M iddle East Wars) claimed inherent powers to defend the nation. S ince the Korean War, presidents have used their claim of inherent powers along with their constitutional power as Commander in Chief to bypass the constitutional provision giving Congress the power to declare war. Congress declared war after the Japanese attack on Pearl Harbor on December 7, 1941. S ince that time, American for ces have been sent to fight foreign wars on more than one hundred occasions but not once was Congr ess asked for a D eclara- tion of War. In 1973, Congress passed the War Powers Resolution designed to restore its role in militar y policy. Presidents, however, have regarded the r esolution as an improper limitation on the inherent powers of the presidency and have studiously ignored the provisions of the War Powers Resolution.

No president has acted so fr equently on the basis of inher ent powers as President George W. Bush. He claimed that the inher ent powers of the presidency gave him the authority to create military commissions, designate U.S. citizens as enemy com- batants, engage in “ extraordinary renditions” of captur ed suspects who would be moved to unkno wn facilities in unnamed countries for interr ogation, and autho - rize the National Security Agency (NSA) to monitor phone conversations between the United States and other nations. 11 When challenged, some but not all of these actions were overturned by the cour ts. These decisions hardly put to r est the idea of inherent power. Indeed, President Obama continued to r ely on the concept of

CHAPTER 10 THE PRES IDENCy324

wtp12e_ess_ptr_ch10_314-345.indd 324 11/28/18 4:36 PM

All democracies have an executive branch, but the specific form it takes varies. In presidential systems such as the United States’, the position of the head of state (the symbolic leader of a country) and the head of government (the leader in charge of the day-to-day running of the government) is combined into one position—the president. In parliamentary systems, these roles are often held by different people, with the head of government being the more powerful position. For example, in Germany, the head of government is the prime minister (called the chancellor), while

the head of state is the president, who plays a largely ceremonial role similar to the United Kingdom’s queen.

Most democracies use parliamentary executive systems, though presidential systems are common in the Americas, in part due to the historical influence of the United States. A small but growing group of countries use a hybrid “semi-presidential” system. France, for instance, divides the executive between a powerful head of state (the president) and the head of government (the prime minister), who have different but (theoretically) equal powers.

Executive Branches in Comparison

PRESIDENTIAL PARLIAMENTARY

Examples United States, Mexico, Brazil

United Kingdom, India, Germany, Japan

Executive title President Prime Minister, Chancellor, etc.

Is the executive the . . .

Head of state? yes No

Head of government? yes yes

Executive elected by . . . voters* parliament

Term in office Fixed by law Subject to support of the parliament

Separation of powers yes No; the PM is a member of the parliament

Executive role in legislating Veto power Initiates most bills

*In the United States, the president is elected by the Electoral College, not by the voters directly. Other presidential systems have the voters directly elect the president.

wtp12e_ess_ptr_ch10_314-345.indd 325 11/28/18 4:36 PM

inherent power in or dering drone strikes against suspected terr orists and or dering American air strikes in Lib ya. In 2017, President Trump’s order banning trav elers from several Muslim countries was based mainly on a claim that the pr esident had the inherent power to bar any class of immigrants whom he thought to be a thr eat to the United States.

Congress has endeav ored to place some limits on po wers that pr esidents claim to be inher ent. One example is the case of emergency po wers. Though presidents believe they hav e the inher ent po wer to deal with emergencies, Congr ess has, by statute, sought to cir cumscribe and guide the use of these po wers. Under the 1976 National Emergencies Act, the pr esident is authoriz ed to declar e a national emergency in the ev ent of major thr eats to the U nited States’ national security or economy.12 An emergency declaration r elating to for eign threats allows the pr esi- dent to embargo trade, seiz e foreign assets, and pr ohibit transactions with what - ever for eign nations ar e inv olved. D uring a state of emergency , constitutional rights, including the right of habeas corpus, may be suspended. An emergency declaration, however, remains in force for only one year unless it is renewed by the president. Congress may, by a joint r esolution of the two houses, terminate a state of emergency.

A closely related area in which Congress has sought to regulate matters that presidents tend to view as involving their own inherent power is the nation’s response to natural disasters. U nder the 1988 S tafford Act, the go vernor of a state affected by a disastrous flood, hurricane, earthquake, or other calamitous event must ask the Federal Emergency Management Agency for a determination that the scope of the

Congress has tried to limit presidential power in the area of disaster relief, however presidents view disaster response as an inherent executive power. President Trump sent troops to Puerto Rico in 2017 in the aftermath of Hurricane Maria.

326 CHAPTER 10 THE PRES IDENCy

wtp12e_ess_ptr_ch10_314-345.indd 326 11/28/18 4:36 PM

disaster is beyond the abilities of state and local authorities to handle. The president may then declare a disaster and make the state eligible for federal funds and r elief. The purpose of the Stafford Act was to ensure that presidential disaster declarations were governed by statutory criteria. I n recent years, however, critics hav e charged that presidential determinations and funding authorizations seemed, nev ertheless, to be driven by political motivations.13

Institutional Resources of Presidential Power Are Numerous

Constitutional sour ces of po wer ar e not the only resources available to the president. Presidents have at their disposal a variety of other formal and informal r esources that hav e impor -

tant implications for their ability to go vern (see F igure 10.2). Collectiv ely, these individuals could be said to make up the institutional pr esidency and to give the presi- dent a capacity for action that no single individual, however energetic, could duplicate. The first component of the institutional presidency is the president’s Cabinet.

THE CABINET IS OFTEN DISTANT FROM THE PRESIDENT

In the American system of go vernment, the Cabinet is the traditional but infor - mal designation for the heads of all the major federal go vernment depar tments. Cabinet secretaries are appointed b y the pr esident with the consent of the S enate. The Cabinet has no constitutional status. Unlike in Great Britain and many other parliamentary countries, wher e the cabinet is the go vernment, the American Cabinet meets but makes no decisions as a gr oup. The Senate must approve each appointment, but Cabinet members ar e responsible to the pr esident, not to the Senate or to Congress at large, although Congress may require cabinet secr etar- ies and their deputies to testify befor e congressional committees. S ince Cabinet appointees generally hav e not shar ed political car eers with the pr esident or one another and since they may meet literally for the first time only after their selec- tion, the formation of an effective governing group out of this diverse collection of appointments is highly unlikely.

THE WHITE HOUSE STAFF CONSTITUTES THE PRESIDENT’S EYES AND EARS

The White House staff is composed mainly of analysts and advisers who ar e closest to, and most responsive to, the president’s needs and preferences.14 Although many of the top White House staff members hold such titles as “adviser to the president,” “assistant to the president,” “deputy assistant,” and “special assistant” for a particular task or sector , the judgment and advice they ar e supposed to pr ovide are a good deal br oader and mor e generally political than those coming fr om the

Identify the institutional resources presidents have to help them exercise their powers

327I NST I TUT IONAl RESOURCES OF PRES IDENT IAl POWER ARE NUMEROUS

wtp12e_ess_ptr_ch10_314-345.indd 327 11/28/18 4:36 PM

Executive Office of the President or fr om the cabinet depar tments. The members of the White House staff also tend to be more closely associated with the president than are other presidentially appointed officials. They are appointed directly by the president and do not need to win Senate approval.

THE EXECUTIVE OFFICE OF THE PRESIDENT IS A VISIBLE SIGN OF THE MODERN STRONG PRESIDENCY

The Executive Office of the President (EOP) is a major par t of what is often called the “institutional presidency”—the permanent agencies that per form defined manage- ment tasks for the pr esident. Created in 1939, the EOP is composed of betw een

FIGURE 10.2

The Institutional Presidency

THE PRESIDENT

THE CABINET Department of Agriculture Department of Commerce Department of Defense Department of Education Department of Energy Department of Health and Human Services Department of Homeland Security Department of Housing and Urban Development Department of the Interior Department of Justice Department of Labor Department of State Department of Transportation Department of the Treasury Department of Veterans Affairs

EXECUTIVE OFFICE OF THE PRESIDENT

Council of Economic Advisers Council on Environmental Quality National Security Council Ofce of Administration Ofce of Management and Budget Ofce of National Drug Control Policy Ofce of Science and Technology Policy Ofce of the United States Trade Representative President’s Intelligence Advisory Board and Intelligence Oversight Board White House Military Ofce White House Ofce

Includes: Chief of Staff Press Secretary Senior Advisers Special Assistants

THE WHITE HOUSE STAFF

Includes: Central Intelligence Agency Environmental Protection Agency Federal Labor Relations Authority General Services Administration

INDEPENDENT AGENCIES AND GOVERNMENT CORPORATIONS

328 CHAPTER 10 THE PRES IDENCy

wtp12e_ess_ptr_ch10_314-345.indd 328 11/28/18 4:36 PM

1,500 and 2,000 highly specializ ed people who wor k for EOP agencies. The most important and largest EOP agency is the Office of Management and Budget (OMB). Its roles in preparing the national budget, designing the president’s program, report- ing on agency activities, and overseeing regulatory proposals make OMB personnel part of virtually every conceivable presidential responsibility. The status and power of the OMB have grown in importance with each successive president. The pro- cess of budgeting at one time was a “bottom-up ” procedure, with expenditure and program requests passing fr om the lowest bureaus through the depar tments to “clearance” in the OMB and hence to Congress, where each agency could be called in to r eveal what its “ original r equest” was befor e the OMB r evised it. N ow the budgeting process is “ top-down”: the OMB sets priorities for agencies as w ell as for Congress.

The staff of the Council of Economic Advisers (CEA) constantly analyz es the economy and economic trends and attempts to give the president the ability to anticipate ev ents rather than waiting for and r eacting to them. The Council on Environmental Quality was designed to do for environmental issues what the CEA does for economic issues. The National Security Council (NSC) is composed of designated cabinet officials and others spanning military, diplomatic, and intelli - gence areas who meet regularly with the president to give advice on national security matters. Other EOP agencies perform more specialized tasks.

THE VICE PRESIDENCY HAS BECOME MORE IMPORTANT SINCE THE 1970S

The vice presidency is a constitutional anomaly ev en though the Constitution created the office along with the presidency. The vice president exists for two purposes only: to succeed the pr esident in case of death, r esignation, or incapacity and to preside over the Senate, casting a tie-breaking vote when necessary.15

The main value of the vice pr esident as a political r esource for the pr esident is electoral. Traditionally, pr esidential candidates choose r unning mates who can win the support of at least one state (pr eferably a large one) not other wise likely to support the ticket. It is very doubtful that John Kennedy would have won in 1960 without his vice-presidential candidate, Texan Lyndon Johnson, and the contribu - tion Johnson made to winning his home state. Another r ule holds that the vice- presidential nominee should provide some regional balance and, wherever possible, some balance among various ideological or ethnic subsections of the party. In 2016, Donald Trump chose Governor Mike Pence of I ndiana as his running mate for a number of reasons. First, Pence, a former host of conser vative radio and television talk shows, was w ell known among conser vatives. His radio and television back - ground also meant that P ence was an experienced public speaker . Second, Pence served in Congress for 12 years. He worked to reassure skeptical party leaders that Trump was a qualified candidate. Third and most impor tant, Pence is a dev out Christian who is very well regarded by social conservatives. As vice president, Pence is often the person Trump relies on to smooth r elations with Republican members of Congress.

329I NST I TUT IONAl RESOURCES OF PRES IDENT IAl POWER ARE NUMEROUS

wtp12e_ess_ptr_ch10_314-345.indd 329 11/28/18 4:36 PM

The vice president is also impor tant because, in the ev ent of the death or inca - pacity of the president, he or she will succeed to the nation’s highest office. During the course of American history, eight vice presidents have had to replace presidents who died in office. One vice president, Gerald Ford, found himself at the head of the nation when P resident Richard Nixon was for ced to r esign as a r esult of the Watergate scandal.

THE FIRST SPOUSE HAS BECOME IMPORTANT TO POLICY

The president ser ves as both chief ex ecutive and chief of state—the equiv alent of Great Britain’s prime minister and monar ch rolled into one, simultaneously leading the government and r epresenting the nation at official ceremonies and functions.

Because they are generally associated with the head-of-state aspect of America ’s presidency, presidential spouses are usually not subject to the same degree of media scrutiny or partisan attack as the president. Traditionally, most first ladies have lim- ited their activities to the cer emonial por tion of the pr esidency. First ladies gr eet foreign dignitaries, visit other countries, and attend important national ceremonies.

Some first spouses, however, have had considerable influence over policy. Franklin Roosevelt’s wife, Eleanor, was widely popular but also widely criticized for her active role in many elements of her husband’s presidency. During the 1992 campaign, Bill Clinton often implied that his wife would be active in the administration; he joked that voters would get “two for the price of one.” After the election, Hillary Clinton

Mike Pence, who served as a member of Congress and then governor of Indiana, is devoutly Christian and socially conservative. He helped improve Donald Trump’s electoral appeal among social conservatives and establishment Republicans.

330 CHAPTER 10 THE PRES IDENCy

wtp12e_ess_ptr_ch10_314-345.indd 330 11/28/18 4:36 PM

took a leading role in many policy areas, most notably heading the administration’s health care reform effort. She also became the first first lady to win public office on her own, winning a seat in the U.S. S enate from New York in 2000. S he also ran for the presidency in 2008 and 2016, having ser ved in between as Barack Obama’s secretary of state. M elania Trump is the first foreign-born first lady in almost 200 years. With no political or public affairs experience, Mrs. Trump said that she would be a traditional first lady. Given the current expectation that the first spouse should assume some public r esponsibility, ho wever, Mrs. Trump has taken on a limited public role in the Trump administration.

Party, Popular Mobilization, and Administration Make Presidents Stronger

During the nineteenth century, Con- gress was America ’s dominant insti - tution of go vernment, and members of Congr ess sometimes tr eated the

president with disdain. Today, however, no one would asser t that the pr esidency is unimportant. Presidents seek to dominate the policy-making pr ocess and claim the inherent power to lead the nation in time of war . The expansion of presiden- tial power over the course of the past centur y has come about not b y accident but as the result of an ongoing effort by successive presidents to enlarge the po wers of the office.

Generally, presidents can expand their power in two ways: through popular mobi- lization and through the administration. F irst, presidents may use popular appeals to create a mass base of suppor t that will allo w them to dominate their political foes, a tactic called “ going public.”16 Second, presidents may seek to bolster their control of established ex ecutive agencies or to cr eate ne w administrativ e institu - tions and procedures that will reduce their dependence on Congress and give them a mor e independent go verning and policy-making capability . P erhaps the most obvious example of this is the use of executive orders to achieve policy goals in lieu of seeking to persuade Congress to enact legislation.

Presidents do hav e a thir d possible tool: their political par ty. Each pr esident has relied on his o wn party to implement his legislativ e agenda. I n 2009–10, for example, President Obama relied on congressional Democrats to prevent rejection of his agreement with I ran to pass the Affordable Care Act in the face of vir tually unanimous Republican opposition. However, the president does not control his party; party members have considerable autonomy. President Trump has often been unable to rally Republican legislators to his cause, and the Republican congressional delegations were so divided that it was unclear whether GOP leaders could mobilize a majority for any set of programs. Moreover, in America’s system of separated pow- ers, the president’s party may be in the minority in Congress and unable to do much for the chief ex ecutive’s programs. Consequently, although their par ty is v aluable

Explain how modern presidents have become even more powerful

331PARTy, POPUlAR MOB Il I ZAT ION , AND ADMIN ISTRAT ION

wtp12e_ess_ptr_ch10_314-345.indd 331 11/28/18 4:36 PM

to chief ex ecutives, it has not been a fully r eliable pr esidential tool. As a r esult, contemporary pr esidents ar e mor e likely to use the two other methods, popular mobilization and executive administration, to achieve their political goals.

GOING PUBLIC MEANS TRYING TO WHIP UP THE PEOPLE

During the nineteenth century, it was considered inappropriate for pr esidents to engage in personal campaigning on their o wn behalf or in suppor t of pr ograms and policies. When Andrew Johnson broke this unwritten rule and made a series of