Why Government Fails So Often: And How It Can Do Better (55 page)

Still, its costs cannot be ignored—and appear to be growing. Obtrusive highways now crisscross the nation, marring once beautiful
and untouched sceneries. Small roadside towns and businesses disappeared as expressways passed them by. The automobile contributed to urban sprawl and helped to undermine many urban centers. Urban expressway construction displaced many low-income residents, contributing to the socioeconomic segregation of many late-twentieth-century cities.
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The system, moreover, has fallen into disrepair; as much as $92 billion in annual spending is needed to maintain the highways, yet the vast increase in registered vehicles—from 74 million in 1960 to almost 250 million today—necessitates modernization and expansion.
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At the same time, the Highway Trust Fund is approaching insolvency.
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Much has changed, and the system must change with it. Funding construction through gasoline taxes, an example of a “majoritarian politics” paradigm (
chapter 5
), created a large, diffuse group of beneficiaries (drivers) who internalized the costs of constructing and maintaining the system. But as cars have grown more fuel efficient, drivers no longer internalize the full cost of supporting the highways, so other revenues will be needed. Contemporary environmental concerns, alternative means of transportation, and the information technology revolution raise the issue of whether our transportation and economic needs can be met in other, less costly ways. Even the defense justifications for the system have lost some force over time, with less need to truck masses of troops and machinery across the continent. The system may also have led to underinvestment in alternative forms of transport, especially rail, whose efficiency may be greater for some services.
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Still, the immense fixed investment already in the system, increasing population and drivership, and the political support for physical infrastructure spending probably assure its continued success.

THE FOOD STAMP PROGRAM

After a number of small, temporary pilot programs dating back to the 1930s, Congress adopted the food stamp program on a permanent basis in 1964, and vastly expanded it ever since. Now known as the
Supplemental Nutrition Assistance Program (SNAP), it is the federal government’s most important income supplement for most low-income Americans, while also helping them to gain a nutritionally adequate diet. (Politically, it has been the quid pro quo for urban liberals’ support for farm subsidies—what Charles Lane calls a Faustian bargain;
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in 2013, the House’s version of the farm bill broke that link for the first time in forty years by excluding food stamps.
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) The monthly benefits averaged $133 per person in 2012, with the federal government paying all benefit costs while splitting the program’s administrative costs with the states, which operate it. Along with unemployment insurance, SNAP is our leading countercyclical entitlement program. Americans will not countenance children and poor people going hungry, especially during economic downturns. SNAP has been a robust response to these concerns. In addition, SNAP is well targeted by some measures. Of the almost forty-eight million participants at the end of 2012, roughly 45 percent are children, nearly 75 percent are in families with children, and more than 25 percent are in households with seniors or people with disabilities. The Center for Budget and Policy Priorities, a leading advocate for the program, notes that 92 percent of the expenditures go to the eligible households, with the rest going to defray the federal share of administrative costs. Benefits can be quickly distributed to sudden disaster victims, and the benefit formula includes a substantial work incentive.
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In these important senses, food stamps are a policy success.

SNAP’s cost, however, has exploded, reaching almost $75 billion in 2012 and putting 15 percent of Americans on the program, a far greater share than in 2009. In the process, its targeting seems to have grown more diffuse. Thus, even though the Great Recession officially ended in 2009 and unemployment dropped substantially from its 10 percent peak in October 2009 to 7.7 percent in February 2013, SNAP continued to expand. It exploded from 28.2 million users in 2008 to almost 48 million at the end of 2012, the same period in which other major entitlement programs either leveled off or declined—and the Congressional Budget Office predicts that further drops in unemployment will only slightly reduce SNAP enrollment. Increases in poverty
—from 37.3 million people in 2007 to 48.5 million in 2011—explain only about half of SNAP’s growth. The rest seems to reflect eased federal standards, and more aggressive enrollment campaigns and laxer enforcement by the states, which bear none of the costs—an institutional form of the moral hazard discussed in
chapter 5
, in addition to whatever individual moral hazard is created by the easier eligibility policies at a time when job opportunities are once again expanding.
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Congress will have to consider these issues along with reforms to other entitlement programs.

THE VOTING RIGHTS ACT OF 1965

Richard Pildes, a leading public law and voting rights scholar, has rightly called the Voting Rights Act of 1965 (VRA) “a sacred symbol of American democracy [and] the most effective civil rights statute enacted in the United States.”
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In the name of political equality and fundamental justice, the VRA succeeded in vastly expanding black and other minority registration and voting. It did so primarily by prohibiting literacy tests and numerous other devices that had been used to reduce minority voting, and by sending federal observers and registrars into Southern states to aid in enforcing the new law. The express purpose of the VRA—to equalize access to the ballot box—was achieved almost immediately. By 1972, the white and black registration and voting rates had converged in all of the states covered by the act. Georgia’s registration gap, for example, had almost completely closed by 1972, going from 35.2 percent to 2.8 percent. Today, Mississippi has the third highest ratio of black-to-white voter turnout; Massachusetts has the lowest.
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This change, which likely exceeded even the most optimistic expectations in the tumultuous civil rights era when it was enacted, has had sweeping structural effects on American politics, even going beyond the two-term presidency of Barack Obama. Electoral politics in the South became competitive for the first time since Reconstruction, with two-party competition and minority voters increasingly constituting a swing-voting bloc. The system of congressional leadership also
changed, with the South losing its previous dominance. The federal courts, spurred by litigation under the VRA, became much bolder in intervening in and regulating electoral structures and thus outcomes. The two-party system became more ideologically coherent, as the Democrats moved to the left with the Republicans, gaining a large number of conservative, previously Democratic voters in the Southern states, moving to the right.
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In all of these ways, the VRA stands as one of the most consequential laws in American history, with most of its consequences being unquestionably desirable.

A second remarkable achievement of the VRA is a dramatic increase in minority office holding at all levels of government—not just in the White House. The number of black elected officials has grown from 500 in 1965 to 1,469 in 1970 to more than 10,500 in 2011.
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At the city and county levels, these numbers increased from 715 in 1970 to close to 5,000 in 2000. Latinos, Asian Americans, and other minorities have similarly experienced large increases in elected officials at all levels.
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Unlike the unalloyed success of the VRA in increasing minority voting, however, the techniques used to swell minority office holding have in the process distorted or violated other cherished political and social values. Congress had assumed that once the VRA secured minorities’ right to vote and have their vote counted, and increased the number of minorities actually voting, many minorities would run for office and many of those would be elected. But many state and local electoral structures—particularly at-large elections—made it hard for them to gain election because the white majority still constituted a majority in those at-large units. Litigation quickly challenged these at-large arrangements as “minority vote dilution,” arguing that the VRA protected not only minorities’ right to cast a vote and have it counted but also to have it be
effective
in the sense that the vote would have an equal chance to elect representatives of the voter’s choosing—who were defined, under a theory of “descriptive representation,” as candidates of the same race and ethnicity as the voter. This conception of effectiveness could only be satisfied through a system of single-member districts representing groups of voters who were racially/ethnically
defined and geographically concentrated enough to assure election. The Supreme Court upheld this vote dilution theory in 1969,
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leading to decades of such federal court challenges to state and local laws that designed electoral maps for elections to state and local legislatures and to the U.S. House of Representatives.

These challenges largely succeeded in convincing the federal courts to require three elements: (1) single-member districts; (2) single-member districts drawn in ways that would assure election of a minority candidate; and (3) a statewide districting map that maximized the number of minorities elected to the legislature as a whole. In effect, elements 2 and 3 encouraged and sometimes required legislatures (and the lower courts) to racially gerrymander the entire statewide districting plan to assure the desired result. Given the opportunity, and perhaps obligation, to gerrymander the plan, and given blacks’ overwhelmingly and predictably liberal Democratic voting, legislators used both racial and partisan criteria to design the districting map, usually in the interests of incumbents.

The methodology just discussed has heightened rather than dispelled the significance of race in the minds and actions of officials and ordinary citizens. The Supreme Court, like the general public in its attitudes toward other forms of affirmative action, is sharply divided about whether or not this legitimation of racial consciousness is socially desirable—about whether (stated oversimply) we should view it as merely a serviceable but temporary tactic needed to transcend the tragic legacy of slavery and racism, or whether it is instead aggravating racial divisions, thus making that halcyon day ever more distant.
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This racially inflected regulation of districting and electoral practices is magnifying zero-sum conflicts
among
black, Hispanic, and Asian groups (although Asians are still too few to claim many districts under the VRA’s group-oriented criteria). These conflicts are almost certain to intensify in the future, as their relative populations and political aspirations change.
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This race-conscious districting has lent itself to narrow partisan opportunism and manipulation, only thinly concealed by legislators under the banners of VRA compliance and racial justice. Indeed, the
Department of Justice’s own inspector general recently criticized its voting rights unit for partisan conduct in VRA enforcement, with conservative career lawyers harassed by their colleagues.
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And in a perverse twist that in politics is no irony, scholars find that partisan legislatures often use VRA-constrained redistricting to
reduce
minority influence overall. This happens because the district mappers, aided by easy computer manipulation, typically distribute minority voters among districts through techniques that “pack, crack, and stack” them in districts for maximum partisan and incumbent advantage, consistent with VRA constraints.
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Another problem with the VRA today is the rigid and anachronistic application of its Section 5, which requires the Department of Justice (DOJ) to preclear even trivial election law changes in those states that the fifty-year-old statutory formula designated for supervision. Today, those states generally have robust intra-and interparty competition, and their minorities now have significant political power to protect their interests.
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Clearly, times have changed dramatically for the better. As noted above, Mississippi now has the highest ratio of black to white voter turnout in the nation, and Massachusetts the lowest. Politicians are unlikely to rectify this anachronism, but the Supreme Court did so in June 2013 in the
Shelby County
case when it struck down the original coverage formula as unconstitutionally out of date.
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Even before this decision, a small but growing number of jurisdictions were availing themselves of Section 5’s “bailout” provision, which freed them from the onerous preclearance regime. Pildes argues persuasively that even apart from the formula, the VRA’s voting rights protection model is ill-suited to today’s challenges. The contemporary problem, he argues, has less to do with discrimination than with “a substantive right-to-vote” model that would focus on issues such as early, absentee, and same-day voting, accurate and secure voter databases, uniform administration, voter identification, and the like.
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Putting these “second generation” problems of VRA implementation to one side, we should ask two questions about the VRA’s striking policy success: Which conditions accounted for it? And how common or replicable are they in today’s policy world? In its “first generation,”
the VRA sought to secure what is perhaps the most fundamental right in a democracy: the right to vote and to have that vote counted. Where this right is denied for racial or ethnic reasons, the injustice is simply indefensible and society’s obligation to enforce enforce the right is simply unarguable. In this case, the moral imperative was magnified by the courage and human appeal of the Selma, Alabama, marchers in 1965 and the palpable brutality of those who opposed them, the nearly universal revulsion and indignation that this behavior aroused throughout the nation, and the determination and moral fervor of a preternaturally forceful president who came from the South, controlled both houses of Congress, and utterly dominated the politics of the day.
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Indeed, the VRA soon became something of a sacred cow, as evidenced by its renewals in 1970, 1974, 1982, and 2006 despite strong arguments (especially in 2006) for repealing or revising certain provisions (especially the formula in Section 5).