Legislative heart and phase transitions: an exploratory study of Congress and minority interests.

• Author: Di Lorenzo, Vincent

TABLE OF CONTENTS

1. INTRODUCTION: DOES RACE MATTER? II. LEGISLATIVE HEART AND REPRESENTATION OF MINORITY INTERESTS

   1. Direct Versus Representative Legislative Voice

   2. Members' Policy Responsiveness: Existing Studies

   3. Legislative Heart as a Measure of Legislative Voice

      1. The Quantitative/Qualitative Research Debate

      2. Chaos Theory's Contribution

      3. A New Approach to the Study of Legislative Voice III. AN EXPLORATORY STUDY: CONGRESS AND FAIR LENDING

   1. The Congress: Policy Responsiveness of the Majority

      1. Actions Taken

      2. The Legislative Details

      3. Actions Refused

      4. The Reasons Given and Perceived

      1. The Initial Enactment: 1968

      2. The First Period of Turbulence: 1974-1977

      3. The Second Period of Turbulence: 1988-1991

      5. Feedback and the Legislative Environment

   2. Individual Members: Comparative Policy Responsiveness of White and Minority Members

      1. Proposals for Action

      2. Advocacy Efforts in Committee and on the Floor

      1. The Initial Enactment: 1968

      2. The First Period of Turbulence: 1974-1977

      3. The Second Period of Turbulence: 1988-1991

      3. Voting Records Generally

   3. Phase Transitions: Nonlinearity and Critical Mass

      1. Critical Mass: Committee Viewpoint

      2. Critical Mass: Individual Advocacy IV. CONCLUSION APPENDIX: VOTING RECORD RATINGS OF HOUSE SOUTHERN DEMOCRATS

1. INTRODUCTION: DOES RACE MATTER?

   Racial gerrymandering . . . threatens to carry us further from the

   goal of a political system in which race no longer matters--a goal

   that the Fourteenth and Fifteenth Amendments embody, and to

   which the Nation continues to aspire.(1)

   The goal of racial blindness convinced Justice O'Connor and a majority of the United States Supreme Court to subject race-based congressional reapportionment schemes to strict scrutiny analysis under the Equal Protection Clause.(2) Such an analysis caused the Court to invalidate, most recently in 1996,(3) certain congressional districts created to ensure that minority voters held a majority position in those districts--so called "majority-minority" districts.

   Despite the Court's lofty goals, however, the question remains whether race continues to matter in the political process. The answer to this question should influence the Court's view of the applicability of the Equal Protection Clause as well as the manner in which it may be applied in political districting decisions. This Article does not focus on election results. It focuses, instead, on the issue of representation of minority interests in the Congress--representation that takes the form of policy responsiveness.

   Only a decade ago, an opinion of the United States Supreme Court led to legislative redistricting aimed at maximizing the number of elected officials from minority groups.(4) Subsequent Congresses reflected the results of this redistricting. After the 1992 election, the number of black members of the House of Representatives rose to thirty-nine, from only seventeen in 1981.(5) District maps drawn specifically to elect additional minority members made it possible for thirteen new blacks and six new Hispanics to win election to the House in 1992.(6) Thirty-six of the thirty-nine black members elected in 1992 were elected from majority-minority districts, whereas only three were elected from majority-white districts.(7)

   A decade after the Thornburg decision, however, the Court views race-based districting differently.(8) Yet the Court's view of the equal protection challenge still is evolving.(9) This Article addresses that evolution. Depending in part on future federal and state court equal protection decisions, gains achieved through race-based redistricting may be eliminated.(10) The 1996 election results do not soothe this concern. Although black incumbents were re-elected, racially polarized voting continued to exist.(11)

   What is lost? If race does not matter, as a means of ensuring that minority interests are represented in Congress,(12) then the Court's decision to give primacy to race-blind aspirations may be acceptable. If race does matter, however, then that conclusion should influence the manner in which the Court applies the Equal Protection Clause to future challenges to legislative districts.

   The significance of the research results contained in this Article extends beyond equal protection issues. Current public debate is absorbed with issues, such as welfare reform, immigration reform, minimum wage increase, and health care protection for the uninsured, that have a significant effect on minority groups as well as other groups without a powerful, direct lobbying voice.(13) Fundamental policy divisions that impede progress often influence the public policy debate.(14) The initial impression is one of elected officials providing meaningful representation to minorities, yet failing to pass meaningful legislation because of policy deadlock.

   We must look below the surface, however. We must search for "legislative heart"--that is, whether elected officials truly feel compassion for the needs of particular minorities and are committed to finding some way to address these needs. When we examine legislative heart, we may, at times, uncover a "legislative mask" that develops when the words spoken by legislators provide an explanation for inaction or deadlock, but actually mask a lack of commitment.

   Part II of this Article examines both the methodology and results of prior case studies that have attempted to measure representation. These studies are evaluated in light of chaos theory. Chaos theory highlights the need for additional research--the need for more qualitative research, in contrast to past reliance on quantitative research (e.g., roll-call votes). Based on this evaluation, a new approach to the study of representation is presented, one seeking to unmask legislative heart. Part III of this Article is a case study of legislative heart and minority interests at the federal level. It is a study of fair lending reforms from 1968 to 1996, reforms aimed at combating racial and ethnic discrimination against individuals and entire urban neighborhoods. In Part III, chaos theory's concept of phase transitions is developed in the legislative arena. The result is an additional explanation for the continued need for race-based districts.

   This study concludes that Congress collectively demonstrates weak legislative heart toward minority needs and interests--i.e., a weak desire and commitment to address these issues. Individual members of Congress demonstrate varying levels of desire and commitment, including strong legislative heart on the part of some individual white members. Nevertheless, black and Hispanic members of Congress demonstrate a stronger desire and a more consistent commitment to address minority needs and interests than white members. The difference is one of degree, with a substantial degree of difference from Southern white Democratic members, as well as a noticeable degree of difference from Northern white Democratic members.

   In the past, the expression of the legislative heart of black and Hispanic members was constrained by the relatively small number of black and Hispanic members. The evidence finally points to achievement of a critical mass after the 1992 elections and race-based redistricting and a phase transition, leading to a more recognizable minority voice in the legislature.

2. LEGISLATIVE HEART AND REPRESENTATION OF MINORITY INTERESTS

   Professors Eulau and Karps have defined four components of representation: service responsiveness, allocation responsiveness, policy responsiveness, and symbolic responsiveness.(15) Earlier studies found that race matters, not only for symbolic representation but also for service responsiveness.(16) This Article focuses on policy responsiveness. Professor Pitkin provides a useful and frequently cited definition of the policy responsiveness component of representation:

   [R]epresent[ation] here means acting in the interest of the

   represented, in a manner responsive to them. The representative must act

   independently; his action must involve discretion and judgment; he must be

   the one who acts.... And, despite the resulting potential for conflict

   between representative and represented about what is to be done, that

   conflict must not normally take place. The representative must act in such

   a way that there is no conflict, or if it occurs an explanation is called

   for.(17)

   This Article develops the concept of legislative heart as a measure of policy responsiveness. In the context of legislative heart, this Article focuses Pitkin's definition on a demand that elected representatives desire to act, and are committed to act, in a manner responsive to the needs of those whom they represent.

   Two types of studies have been conducted: studies of the number and resources of lobbying groups, including public interest lobbyists; and studies of the responsiveness of Congress as a body--and of black, Hispanic and white (non-Hispanic) members of Congress--to the interests of minority group members. These studies are discussed in Parts II.A and II.B infra.

   1. Direct Versus Representative Legislative Voice

      Empirical studies have concluded that two groups are represented poorly among organized interest groups: the less-advantaged and the proponents of broad public policy initiatives.(18) Professors Schlozman and Tierney found:

      In spite of all the newborn organizations representing the interests of

      diffuse publics, minorities, poor people, the elderly and other

      disadvantaged groups, business actually is a more dominating presence

      in Washington now than it was two decades ago. Considering all

      organizations having representation in Washington, the proportion

      representing the interests

      of business rose from 57 percent to 72 percent since

      1960. The proportion of citizens' groups decreased from 9

      percent to 5 percent of all organizations and the proportion

      representing labor plummeted from 11 percent to 2 percent.

      . . .

      . . . To summarize, a very large share of the civil rights

      ...