The Incumbent Protection Racket

Being elected to Congress is tantamount of a lifetime appointment similar to being named to the Federal bench, at least in the House of Representatives. According to government watchdog, Common Cause, in 2004, 399 Congressional incumbents ran for re-election. Of that number only seven lost and two of those seven ran against other incumbents in Texas. Thus, a 98.3 percent incumbent re-election rate nationwide and a 99 percent re-election rate for all states outside of Texas. Since 1976, the incumbent re-election rate for the House has dipped below 90 percent only once, in 1992, when it was 88.3%.

Congress has become a permanent institution. Even in the redistricting year of 2002, when traditionally seats are more vulnerable due to the change in district lines, the re-election rate was 96 percent. The reasons for the incumbent re-election rate being so high are many, but all of them can, in the end, be reduced to two matters, the redistricting process and campaign finance laws.

Redistricting: The Only Real Bi-Partisan Effort
In most states, the state legislature controls the process of drawing the district lines for both state and congressional legislative districts. The process, which used to involve the literal smoke-filled back room, has become a high stakes battle between demographers and database experts. The precision with which district lines can be draw to include or exclude people on a given street depending on their partisan affiliation or trend in the neighborhood boggles the mind.

But redistricting is not the battle one would presume, namely a battle between the parties for power, which in some cases, such a Georgia, Pennsylvania and Texas, it is. Rather, the political parties argue and wheedle to get a few hundred more voters into their districts to solidify their hold on the seat. If that means a few voters move to another district to solidify the hold by the other party on that seat, that’s fine. Thus is born the sweetheart gerrymander, where the major parties schmooze one another to guarantee that neither party loses seats.

The result of this bipartisan love-fest is Congressional seats that are more and more safe. According to the Rhodes Cook Report, since 1990, the number of competitive House seats, defined as districts where the winner won with less than 55% of the vote has fallen from a high of 111 in 1992 to just 32 in 2004.

The prospects for change are slim, simply too much power hangs in the balance of the redistricting process. State legislators look to ensure their own tenure in the state legislature or at least lay the groundwork for moving up to Congress, in a safe seat of course. Some states, however, have changed their process as a result of the referendum process, for example, the California proposition currently being considered this fall. Similarly, the residents of Arizona passed a Constitutional amendment making the redistricting the duty of a five member commission with a mandate, in part, to favor competitive districts when possible (see Sec. 14(F)). Iowa uses a legislative support agency to draw the lines.

Are these methods perfect? No, but unless something is done to make the redistricting process more transparent and skewed to favor competition among candidates and the parties, there will be little incentive for the states to make a change. Without the change in laws and process, there is not likely to be much change in the Congressional Roster anytime soon.

Campaign Finance Laws: Regulating Speech, Ensuring Re-election

The current structure of the campaign finance laws, at least at the federal level, all but guarantees elections that are not competitive at all. As a matter of disclosure here, I don’t believe in much regulation beyond the power of disclosure, i.e. reporting where the candidate’s campaign money is coming from. Everything else is an encroachment on freedom of speech and particularly political speech. But having spent most of my adult life in the campaign finance world, here are some of the practices that favor incumbents.

Year-Round fundraising. As a former PAC manager, on November 8, 2000, literally a day after the incomplete Presidential election, operating on a little more than two hours of sleep, I received a call from Senator Robert Smith (R-NH) asking for a $10,000 contribution from the PAC I managed to his campaign in 2002!!! Thus started the 2002 election cycle.

Incumbents receive the bulk of the PAC money available. The reasons for this largesse are many (and none are connected to the concept of money buying support among legislators). But the result is that by the time challengers file papers to run in a race, the incumbent has amassed an nearly insurmountable lead in fundraising, placing a very large obstacle in the path of potential challengers.

Certain advantages will always accrue to incumbents. It is far easier for an incumbent to get his or her name in the papers or to be invited to speak. But it is within the power of Congress to say that fundraising will only occur once a challenger has filed or during the actual election year as I have argued in this forum and at this location. I realize the Olympian task involved to get Congress to agree to such a proposition, but it would go a long way to leveling the playing field and making campaigns more competitive.

An additional plus to this idea would be that for at least one year Congress can focus on being full-time legislators and not full-time campaigners.

Legal Protections. If candidates filing to challenge incumbents face the massive obstacle of a bloated campaign war chest belonging to an incumbent, one method to jumpstart a campaign is to self-fund, i.e. spend a great deal of your own money. There are drawbacks to only the personally wealthy being able to run, but that is the subject of a later post.

But Congress has thought of that as well, passing, as a part of the McCain-Feingold free-speech sapping Bipartisan Campaign Reform Act, the Millionaire’s Amendment. This legislative absurdity states that if a candidate (read incumbent) is facing an opponent who will spend in excess of certain amount of their own money (currently $350,000 for House candidates) that candidate (incumbent) may raise funds under increased contribution limits—up to six times the normal limit (currently $2,100 per election). According to FEC data for the 2004 election cycle, incumbents spend less than 0.5 percent of all the money they raise for re-election from their own pocket, against the nearly 12 percent for open seat candidates and over 16 percent for challengers. During the debate, Senators supporting the Millionaire’s Amendment routinely stated that the amendment would “level the playing field” and make campaigns fairer. What they didn’t say was that they would be the primary beneficiaries of the amendment.

So what is the solution for this abomination? Treat political wealth and personal wealth the same. If an incumbent has a big warchest, allow challengers to raise funds under increased limits until parity is achieved. Then everyone is on a truly level playing field.

Some would say, reasonably, that the best way to limit the effect of big money in the system is to impose some very low limits. This belief is premised on the thought that everyone should have an equal voice in government, that big money somehow corrupts the process. But the premise is flawed. There exists a guarantee of equal voice--voting rights. Corporations and labor unions cannot vote, individuals can and that makes them more powerful than the richest PAC.

Leadership PACs: Campaign Funds in Disguise. A leadership PAC is a political committee that is, while legally distinct, the functional equivalent of an alter ego of a member of Congress. Leadership PACs used to be the tools by which, well Congressional leaders, helped their party out by raising additional funds to contribute to junior Congressmen and candidates. In the past, the Speaker, the Majority and Minority leaders, powerful committee chairmen and occasionally ranking members might have a leadership PAC. You could count the number of real leadership PACs on two hands.

Today, even the most junior member of the House has a leadership PAC. These PACs are used for political travel, fundraising expenses and other functions designed to increase the political stature of the member who nominally sponsors the PAC. Leadership PACs used to allow Congressional leaders to travel to other candidates districts to help raise money for those candidates. Today they are simply a means for a candidate to increase his ability to influence his own re-election prospects.

Challengers and open seat candidates do not have leadership PACs. They cannot tap into a fundraising base twice like incumbents can. Incumbents with a leadership PAC can fund travel back and forth to the district and within the district without having to tap in to their personal campaign funds, leaving more money in their already bloated campaign account to campaign.

If this description of leadership PACs confuses you, you are not alone. One solution would be to outlaw leadership PACs, which the PAC manager in me would like to see happen, but the lawyer in me objects. A lesser alternative would be to limit the geographic location where funds can be spent, i.e. not in the Congressman’s home state. Yet, I am aware of hypocrsiy of my position in that such limitations, I admit, run counter to my belief that we need less campaign finance regulations, not more. Thus, leadership PACs may just be a by-product we have to live with.

What to Do: A Reality Check

Of course, the biggest problem with campaign finance laws remains that Congress gets to write the rules. So long as no one pressures them to change the rules, no change will occur. Campaign finance changes never top anyone’s list of important issues, but the near permanence of Congress must change if we are to have real political debates in this country, political debates with consequences for those Congressmen who dare not act as they should, as representatives of the people.

Campaign Finance reformers like Democracy 21 and Common Cause routinely espouse the view that government needs to ensure some that the democratic process must work. But such a viewpoint is not democracy, but bureaucracy. The ideas and rules I have put forth in here aim to truly level the playing field, making it more likely that challengers can succeed in the political arena. I oppose term limits which, unless included in a Constitutional Amendment, are unconstitutional. Rather, I would prefer rules that make campaigns a true competition between candidates and ideas. Is such a world possible? Yes it is, but not likely right now. But with more educated voters, we can get there from here.

Posted by Matt Johnston at September 28, 2005 1:28 PM
Comment #82428

Matt, excellent article and treatment of the single most pervasive reason government is so wasteful, inefficient, and growingly abusive of its own traditional laws and Constitution.

Change will only come with a grassroots anti-incumbency movement across the board regardless of party or political ideology. It can happen, but, like you, I question if the time is near or far.

Posted by: David R. Remer at September 28, 2005 2:10 PM
Comment #82451

A question: Why are there no limits on the amount of time a person can spend in Congress? I understand that is considered unconstitutional for states to impose such limits, but why is there no push to get this changed on a national level (other than the obvious reason that the politicians do not want to limit their own power)?

Posted by: Erika at September 28, 2005 3:53 PM
Comment #82464


As you point out, the fact that Congress may not want to vote themselves out of a job is a contemporary reason for the lack of a Constitutional limit on terms. Yet, there may be two historical reasons. First, the Framers were writing hte constitution at a time when the average life expectance was somewhere around 50 or even less (I don’t have the data at hand). Even assuming someone got elected at age 25, the chances of that person serving very long were pretty limited. By contrast we routine have congressmen who have served for 20, 26, or 30 years. Congressman John Dingell of Michigan has been elected to 27 terms—54 years and his father held the seat before him!!!

Second, I believe that the Framers were also writing the constitution at a time when voters (being largely white, male and landowning) put more time and effort in to governmental matters than the average voter of today. Thus, there was a greater chance of electoral turnover. I have no data to support such a hypothesis, however.

Keep in mind, when originally written the Constition had no term limits on any federal office. The President had no term limits, thus the reason why FDR was elected four times. Congress could be forced, if enough effort is made, to pass a constitutional amendment, but such an event is unlikely in the near future.

Posted by: Matt Johnston at September 28, 2005 4:34 PM
Comment #82471

Matt, term limits is a sinister alternative to voter education, awareness, and involvement. The huge downside to term limits is that competence and capability is not retained, not to mention continuity of policy toward long term solution implementations. America hasn’t the ability to stick to a long term plan as it is (and it is killing us) but, term limits would only worsen this.

Posted by: David R. Remer at September 28, 2005 4:55 PM
Comment #82481


“I believe that the Framers were also writing the constitution at a time when voters (being largely white, male and landowning) put more time and effort in to governmental matters than the average voter of today. Thus, there was a greater chance of electoral turnover. I have no data to support such a hypothesis, however.”

I’m thinking that the “Framers” didn’t forsee that someone serving in government would want to make it a career, or a way to get rich.
Those that served had jobs or farms and families waiting for them when they got home. They had things to do besides run the government.

Posted by: Rocky at September 28, 2005 5:23 PM
Comment #82487
I understand that is considered unconstitutional for states to impose such limits

You do? Could you explain it to me then, because as I understand it a state could appoint their Senators based off of their last name as it appears in the phone book if they want. What is the logic behind saying that they can’t impose limits as well?

Posted by: Rhinehold at September 28, 2005 6:04 PM
Comment #82493

Rhinehold, my understanding is that term limits have been seen by some courts as adding restrictions beyond those in the constitution on who can run. Thus, without a constitutional amendment, the courts see saying a person cannot if they have reached a term limit is a form of discrimination.

David, you said,

The huge downside to term limits is that competence and capability is not retained
There are enough compentent people that this would not be an issue. Your other objection, the continuity problem, is more important. However, I do not think it is insurmountable. If a group of people is dedicated to a project, it is likely their terms will not all end at the same time. Furthermore, it is likely that as more senior members of the group leave, newer members will take their place. There can be continuity of interest even without continuity of person.

Posted by: Erika at September 28, 2005 6:22 PM
Comment #82506

Sorry, Erika, but the Federal Government has no say on who can be sent to represent the states beyond basic limitation. Of course additional restrictions can be placed by the states, how can a judge who understands the constitution not get that the consititution is a document who’s sole purpose is to limit the federal government and protect the rights of all americans? That without specificly being spelled out the state governments are the only ones who can do anything…?

Oh yeah, that was all thrown away with the 9th and 10th amendments in the last century… :(

Posted by: Rhinehold at September 28, 2005 7:23 PM
Comment #82523

How about something really simple? Like making Federal elections a holiday, BUT only if you get a proof-of-vote from a polling place?

Posted by: eddie filek at September 28, 2005 9:17 PM
Comment #82678

Rhinehold Said:

Sorry, Erika, but the Federal Government has no say on who can be sent to represent the states beyond basic limitation.

Actually, Rhinehold, the federal government has the explicit, ultimate, and final authority to say who can be sent to represent the states in Congress. Article I, Section 5 of the Constitution reads

Each Houe shall be the Judge of the Elections, Returns and Qualifications of its own Members….

The Supreme Court case of Powell v. McCormack stated pretty much the same, that the Supreme Court had no jurisdiction to tell Congress to seat or not seat a person since the Constitution made a textual committment of the duty to another branch of government, namely Congress.

That basic limitation you speak of is much more than basic, it is complete and unlimited and I might add non-justiciable in the Courts.

Posted by: Matt Johnston at September 29, 2005 11:18 AM
Comment #82682
the Federal Government has no say on who can be sent to represent the states beyond basic limitation.

The assumption was that given that candidates self-select (party-select, whatever) in Washington state, the Constitution presents a minimum set of requirements and anything beyond that is discrimination. The ruling was not that something like term limits are inherently unconstitutional, just that given the current method of choosing, adding the restriction of term limits was unconstitional.

Not that I agree, but that was the logic they used.

Posted by: Erika at September 29, 2005 11:23 AM
Comment #110320

Sorry folks, call me a pessimist, but it’s a lost cause in the US. Is not going to change no matter what private sector group tries. You are truly ruled by the beaurocracy, and I’m not talking primarily about politicians either, but rather public sector and governmental agencies. No conspiracy, just a dumb, lumbering, slovenly, unaccountable self-immolating beast. Example: pork barrel spending? Try EXACTLY the same “outrage” in the 70’s, 80’s, 90’s and viola!…2005! If anything’s changed, it’s certainly worked hasn’t it? Republican…democrat…whatever, they make absolutely no difference, although their different labels seem to pacify people’s feeling they’re participating in an adversarial process. Like the importance of the polical persuasion of a whore, irrelevent.
I moved to Australia. Get this: preference voting (i.e., everyone’s vote counts), candidates can ONLY campaign 6 weeks prior to an election by law, there’s a small fine if you don’t vote (and 99.8% of people do… no whining about elected officials not being representative of the populace)….and you vote on…..a Saturday…when people actually have a DAY OFF and it’s easier to vote. You a politico and you get caught with your hand in the cookie jar, or dismissing the public?….you’re sacked…period.
None of the above, individually, no matter how logical or much better it might make the American election and governmental system function, would EVER be implemented. Too thick with national self-worship and mired in absolutely unresponsive beaurocracy. Sorry to be so bleak, but the odor of the coffee’s pretty strong people, too bad the collective slumber is actually a coma, so there won’t be any awakening to smell the stuff.

Posted by: James at January 5, 2006 5:03 AM
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