Why the center does not hold: The causes of hyperpolarized democracy in America

California Law Review

Volumn 99, Issue 2, 2011, Pages 273-333

  Pildes, Richard H ^a  

^a NEW YORK UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 79960683246     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (260)

1. A host of studies reach similar conclusions about this fact, even as they use a variety of different measures to assess party polarization. See, e.g., ALAN I. ABRAMOWTTZ, THE DISAPPEARING CENTER 139-58 (2010);
2. NOLAN MCCARTY ET AL., POLARIZED AMERICA: THE DANCE OF IDEOLOGY AND UNEQUAL RICHES 15-71 (2006);
3. DAVID W. ROHDE, PARTIES AND LEADERS IN THE POSTREFORM HOUSE (1991);
4. BARBARA SINCLAIR, PARTY WARS: POLARIZATION AND THE POLITICS OF NATIONAL POLICY MAKING 3-36 (2006);
5. JEFFREY M. STONECASH ET AL., DIVERGING PARTIES: SOCIAL CHANGE, REALIGNMENT, AND PARTY POLARIZATION 18 (2003);
6. John J. Coleman, The Decline and Resurgence of Congressional Party Conflict, 59 J. POL. 165, 165-84 (1997);
7. Melissa P. Collie & John Lyman Mason, The Electoral Connection Between Party and Constituency Reconsidered: Evidence from the U. S. House of Representatives, 1972-1994, in CONTINUITY AND CHANGE IN HOUSE ELECTIONS (David W. Brady et al. eds., 2000);
8. Richard Fleisher & Jon R. Bond, The Shrinking Middle in the US Congress, 34 BRIT. J. POL. SCI. 429, 429-51 (2004)
9. [hereinafter Fleisher & Bond, The Shrinking Middle];
10. Richard Fleisher & Jon R. Bond, Partisanship and the President's Quest for Votes on the Floor of Congress, in POLARIZED POLITICS: CONGRESS AND THE PRESIDENT IN A POLARIZED ERA (Jon R. Bond & Richard Fleisher eds. 2000);
11. Gary C. Jacobson, Party Polarization in National Politics: The Electoral Connection, in POLARIZED POLITICS: CONGRESS AND THE PRESIDENT IN A POLARIZED ERA (Jon R. Bond & Richard Fleisher eds., 2000);
12. Jason M. Roberts & Steven S. Smith, Procedural Contexts, Party Strategy, and Conditional Party Voting in the U. S. House of Representatives, 1971-2000, 47 AM. J. POL. SCI. 305, 305-17 (2003);
13. Sean M. Theriault, The Case of the Vanishing Moderates: Party Polarization in the Modern Congress, Presented at the American Political Science Association Annual Meeting (May 26, 2009), available at http://www.allacademic. com/meta/p60280-index.html.
14. RONALD BROWNSTEIN, THE SECOND CIVIL WAR: HOW EXTREME PARTISANSHIP HAS PARALYZED WASHINGTON AND POLARIZED AMERICA 14 (2007).
15. These figures are based on standard measures of votes in Congress (DW-Nominate scores). See ABRAMOWITZ, supra note 2, at 141. In addition, over this same period "strong conservatives" grew from 17% of House Republicans to 67%, while "strong liberals" went from 35% of House Democrats to more than 50%.
16. See Alan I. Abramowitz, U. S. Senate Elections in a Polarized Era (Oct. 24, 2009) (unpublished manuscript) (on file with author).
17. As one study puts it, in 1968, 60% of members of Congress voted in the middle third of the ideological spectrum; by 2004, that percentage had become 25%. See Sean M. Theriault, Party Polarization in the U. S. Congress: Member Replacement and Member Adaptation, 12 PARTY POL. 483, 484 (2006).
18. Using another measure, one study concludes that only 13% of voters in the 2004 presidential election were "swing voters", compared to an average of 23% in presidential elections from 1972-2004. THE SWING VOTER IN AMERICAN POLITICS 138 (William G. Mayer ed., 2008). Here is another perspective on the point: in recent elections, party-line voting has become much more the norm than in earlier years. Thus, party loyalty in presidential elections in 2000, 2004, and 2008 was 90.0%, 91.0%, and 90.5%, respectively. In the last four House elections, it ranged between 90.1% and 92.0%.
19. See Gary C. Jacobson, The 2008 Presidential and Congressional Elections: Anti-Bush Referendum and Prospects for the Democratic Majority, 124 POL. SCI. Q. 1, 8-9 (2009)
20. [hereinafter Jacobson, The 2008 President and Congressional Elections];
21. see also Marc J. Hetherington, Resurgent Mass Partisanship: The Role of Elite Polarization, 95 AM. POL. SCI. REV. 619, 629 (2001) (explaining that National Election Study data show that "partisans of every stripe were significantly more loyal to their party's standard-bearer in 2000 than in either 1992 or 1996"). Similarly, this analysis of the 2008 elections reflects an increasingly polarized electorate: Number of states decided by less than 5 points in 2008:7, down from 12 in 2000 and 11 in 2004. Percentage of electoral votes in those states down from 26% in 2000 and 25% in 2004 to 17% in 2008. Number of blowout states (10% plus) in 2008:34 plus D. C. That's up from around 25 in 2000 and 2004. Percentage of electoral votes in blowout states up to 71 in 2008 from 57 or 58 in 2000 and 2004. Average state winning margin in 2008 at around 17 points, up from 14 or 15 in 2000 and 2004. Conclusion: more, not less polarization in these results. The country is more, not less divided than ever. While there are more blue states, the divide between the red states and blue states is larger than ever. There may be only one United States of America, as Barack says, but the divide between the red states and blue states is deeper than at any time in the past sixty years. And the correlation between 2004 Bush margin and 2008 McCain margin:.95. So same divisions are [sic] four years ago, only deeper.
22. Michael Crowley, Polarized America, THE NEW REPUBLIC (Nov. 6, 2008, 12:10 PM), http://www.tnr.com/blog/the-stump/polarized-america (summarizing the findings of political science professor Alan Abramowitz).
23. MATTHEW LEVENDUSKY, THE PARTISAN SORT: HOW LIBERALS BECAME DEMOCRATS AND CONSERVATIVES BECAME REPUBLICANS 38-77 (2009).
24. Larry M. Battels, Partisanship and Voting Behavior, 1952-1996, 44 AM. J. POL. SCI. 35 (2000);
25. Hetherington, supra note 7, at 629.
26. LEVENDUSKY, supra note 8, at 8.
27. In this case, 80% of the party-in-power's voters approved of the President's performance, but only 20% of other parties' voters did. The most extreme partisan gap ever reported in these polls occurred during the Bush II presidency; in 2004, this gap was 75.3 points, with 90.5% of Republicans approving of his performance and only 15.2% of Democrats doing so. BROWNSTEIN, supra note 3, at 16.
28. See William A. Galston, Can a Polarized American Party System Be "Healthy?", 34 ISSUES IN GOVERNANCE STUD, 1, 14-15 (2010).
29. ABRAMOWITZ, supra note 2, at 49-57.
30. See BRUCE E. KEITH, ET AL., THE MYTH OF THE INDEPENDENT VOTER 60-75 (1992).
31. MORRIS P. FIORINA, ET AL., CULTURE WAR? THE MYTH OF A POLARIZED AMERICA 19 (2006).
32. ABRAMOWTTZ, supra note 2, at 15-34.
33. For an astute recent popular analysis, which concludes that, "[o]n every front, the chasm is widening between the parties over Washington's proper role", see Ronald Brownstein, A Reaganite or Jacksonian Wave?, NAT'L J., Oct. 31, 2009 at 13 (positing that the parties are so divided that Democrats can be seen as Jacksonian heirs, who want to enlarge government to defeat perceived special interests, while Republicans today can be seen as Reagan heirs, who want to reduce the scope of government across the board).
34. READ THE STIMULUS, http://www.readthestimulus.org (last visited Feb. 17, 2011).
35. Jeffrey M. Jones, Obama's Approval Most Polarized for First-Year President, GALLUP (Jan. 25, 2010), available at http://www.gallup. com/poll/125345/obama-approval-polarizedfirst-year-presidentaspx.
36. That polarization is elite driven in this way is the theme of Levendusky's important book, a theme he seeks to prove over several chapters. See LEVENDUSKY, supra note 8.
37. Bush offered the Secretary of Energy position to John Breaux, Democratic Senator of Louisiana, who turned it down. Bush's first major piece of legislation, the No Child Left Behind Act, received bipartisan support and was actively negotiated with two major liberal Democratic figures in Congress, Rep. George Miller and Sen. Edward Kennedy, both of whom Bush praised highly and visibly. BROWNSTEIN, supra note 3, at 228-29. On Sept. 10, 2001, Bush's approval rating was 51%, with 90% of Republicans approving but only 27% of Democrats doing so.
38. Thomas B. Edsall, Why Other Sources of Polarization Matter More, in 1 RED AND BLUE NATION? CHARACTERISTICS AND CAUSES OF AMERICA'S POLARIZED POLITICS 292, 292 (Pietro S. Nivola & David W. Brady eds., 2006).
39. BROWNSTEIN, supra note 3, at 222-25.
40. A USA Today story from August 2000 was typical: Bush would "govern from the center, rejecting the shrill conservative absolutism that turned off swing voters after Republicans won control of Congress in 1994." Editorial, Clinton's Challenges of '92 Confront Bush Today, USA TODAY, Aug. 4, 2000, 18A. The Pew Research Center, in a 2000 study, found that media reports had generally described Bush as "a different kind of Republican-a 'compassionate conservative', a reformer, bipartisan. "
41. PEW RESEARCH CENTER'S PROJECT FOR EXCELLENCE IN JOURNALISM, A QUESTION OF CHARACTER: HOW THE MEDIA HAVE HANDLED THE ISSUE AND HOW THE PUBLIC HAS REACTED 1 (2000).
42. BROWNSTEIN, supra note 3, at 226.
43. See, e.g., JONATHAN CHAIT, THE BIG CON: THE TRUE STORY OF HOW WASHINGTON GOT HOODWINKED AND HIJACKED BY CRACKPOT ECONOMICS 149 (2007) ("From the beginning, 'compassionate conservatism' was an artifice designed to mask Bush's conservatism from an electorate that did not want a sharp rightward turn. ").
44. BROWNSTEIN, supra note 3, at 338.
45. For one surprising example of this nostalgia, from a sophisticated source that should know better, see KEITH T. POOLE & HOWARD ROSENTHAL, IDEOLOGY AND CONGRESS 319 (2d ed. 2007) ("Our politics suffers from the disappearance of moderate leaders of the past. Men like Dan Rostenkowski, Sam Rayburn, Chuck Percy, Mark Hatfield, and Howard Baker were able to reach across party lines and craft compromises.").
46. Peter Boyer, Getting to No, NEW YORKER, Sept. 28, 2009, at 32.
47. As has recently occurred in the special election to fill a vacant seat in a reliably Republican district, New York's 23rd. See Adam Nagoumey & Jeremy W. Peters, G. O. P. Moderate, Pressed by Right, Abandons Race, N. Y. TIMES, Oct. 31, 2009, at A36.
48. see JULIET ELLPERIN, FIGHT CLUB POLITICS: HOW PARTISANSHIP IS POISONING THE HOUSE OF REPRESENTATIVES 10 (2006).
49. BROWNSTEIN, supra note 3, at 226.
50. BROWNSTEIN, supra note 3, at 15.
51. See, e.g., Richard H. Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N. C. L. REV. 1517 (2002)
52. [hereinafter Pildes, At War with Itself?];
53. Richard H. Pildes, Symposium: Group Conflict and the Constitution: Race, Sexuality, and Religion: Principled Limitations on Racial and Partisan Redisricting, 106 YALE L. J. 2505 (1997);
54. Richard H. Pildes, The Politics of Race, 108 HARV. L. REV. 1359 (1995)
55. [hereinafter Pildes, The Politics of Race];
56. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts", and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483 (1993).
57. See, e.g., BYRON E. SHAFER & RICHARD JOHNSTON, THE END OF SOUTHERN EXCEPTIONALISM: CLASS, RACE, AND PARTISAN CHANGE IN THE POSTWAR SOUTH (2006).
58. See LEVENDUSKY, supra note 8, at 109-19.
59. See generally J. MORGAN KOUSSER, THE SHAPING OF SOUTHERN POLITICS: SUFFRAGE RESTRICTION AND THE ESTABLISHMENT OF THE ONE-PARTY SOUTH, 1880-1910 (1974).
60. See generally JAMES MACGREGOR BURNS, THE DEADLOCK OF DEMOCRACY: FOUR-PARTY POLITICS IN AMERICA (1963).
61. BURNS, supra note 46, at 127-28. The first civil rights legislation of the modern era, the 1957 Civil Rights Act, was also enacted during the Eisenhower years, and similarly required a bipartisan coalition, given the fragmentation of the Democratic Party.
62. A superb account of how that coalition was orchestrated is given in ROBERT CARO, THE YEARS OF LYNDON JOHNSON: MASTER OF THE SENATE 507-11, 600-24 (2002).
63. BURNS, supra note 46, at 260.
64. In Mississippi, for example, the black registration rate jumped from 6.7% to 59.4% within three years of the Act's passage. See Pildes, The Politics of Race, supra note 42, at 1360-61
65. (reviewing QUIET REVOLUTION IN THE SOUTH: IMPACT OF THE VOTING RIGHTS ACT 1965-1980, CHANDLER DAVIDSON & BERNARD GROFMAN, EDS. (1994)).
66. See, e.g., EDWARD G. CARMINES & JAMES A. STIMSON, ISSUE EVOLUTION: RACE AND THE TRANSFORMATION OF AMERICAN POLITICS xiii (1989) ("The struggle over race, at its peak the dominant issue of American political life for only some three years in the mid-1960s, permanently rearranged the American party system.");
67. see also PAUL R. ABRAMSON ET AL., CHANGE AND CONTINUITY IN THE 1988 ELECTIONS 121-51 (1990) (adopting the Carmines and Stimson view).
68. See THOMAS B. EDSALL & MARY D. EDSALL, CHAIN REACTION: THE IMPACT OF RACE, RIGHTS, AND TAXES ON AMERICAN POLITICS (1991).
69. See, e.g., Alan I. Abramowitz, Issue Evolution Reconsidered: Racial Attitudes and Partisanship in the U. S. Electorate, 38 AM. J. POL. SCI. 1, 2 (1994). The evidence presented in this paper shows that racial attitudes had very little influence on party identification among either younger or older whites. Other issues, especially those involving the scope of the welfare state and national security, played a much larger role in driving many whites away from the Democratic Party during the 1980s.
70. SHAFER & JOHNSTON, supra note 43.
71. This view is supported by the earlier work in Abramowitz, supra note 54, at 14.
72. SHAFER & JOHNSTON, supra note 43, at 24-29. Shafer and Johnston appear to argue that for presidential elections, views on racial issues did drive partisan voting patterns of Southern whites, but for the House and Senate, it was economic self-interest.
73. see, e.g., DAVID LUBLIN, THE REPUBLICAN SOUTH: DEMOCRATIZATION AND PARTISAN CHANGE 22-23 (2004).
74. SHAFER & JOHNSTON, supra note 43, at 115.
75. In 1991, the last year before redistricting, the South's congressional delegation consisted of 72 white Democrats, 5 black Democrats, and 39 white Republicans; a decade later, under the districts created in 1992, there were 37 white Democrats, 16 black Democrats, and 71 white Republicans (and one independent). EARL BLACK & MERLE BLACK, THE RISE OF SOUTHERN REPUBLICANS 13 (2002).
76. See generally Pildes, The Politics of Race, supra note 42.
77. Shafer and Johnson argue that in the 1980s, the biracial composition of many congressional districts created incentives for biracial campaigns, but that when the incentives for such campaigns were "sharply reduced" after the 1990s redistricting, those kind of campaigns became much rarer. SHAFER & JOHNSON, supra note 43, at 108-16.
78. See, e.g., BLACK & BLACK, supra note 61, at 369-404.
79. ABRAMOWITZ, supra note 2, at 44-45.
80. LEVENDUSKY, supra note 8, at 106-08, 131-32.
81. Thomas M. Carsey & Geoffrey C. Layman, Changing Sides or Changing Minds? Party Identification and Policy Preferences in the American Electorate, 50 AM. J. POL. SCI. 464 (2006).
82. LEVENDUSKY, supra note 8, at 126-28.
83. LUBLIN, supra note 58, at 1.
84. See Jeff Zeleny, Democrats' Grip on the South Continues to Slip, N. Y. TIMES, Oct. 18, 2010, at A18.
85. See Holly Ramer & Andrew Miga, GOP Eyes Comeback for New England House Seats, REAL CLEAR POLITICS, Apr. 28, 2010, http://www.realclearpolitics. com/news/ap/politics/2010/Apr/28/gop-eyes-comeback-for-new-england-house-seats. html (noting that there were no Republican House members from New England after 2008 elections).
86. See Adam Bonica, Introducing the 112th Congress, IDEOLOGICAL CARTOGRAPHY, Nov. 5, 2010, http://ideologicalcartography.eom/2010/11/05/introducing-the- 112th-congress.
87. ABRAMOWITZ, supra note 2, at 19.
88. In addition to the data in their work, an extensive summary of the changing patterns of economic inequality over the twentieth century can be found in LARRY M. BARTELS, UNEQUAL DEMOCRACY 1-29 (2008).
89. HISTORYCENTRAL. COM, 2008 Election Results by Income, http://www.historycentral.com/elections/12008/exit/Income.html (last visited Feb. 17, 2011);
90. see also Election 2008: What Really Happened, RED STATE, BLUE STATE, RICH STATE, POOR STATE (Nov. 5, 2008), http://redbluerichpoor.com/blog/2008/ll/ election-2008-what-really-happened [hereinafter RED STATE, BLUE STATE].
91. See RED STATE, BLUE STATE, supra note 85.
92. On the history of primary elections, see generally LEON EPSTEIN, POLITICAL PARTIES IN THE AMERICAN MOLD 167-74 (1986).
93. David W. Brady et al., Primary Elections and Candidate Ideology: Out of Step with the Primary Electorate?, 32 LEGIS. STUD. Q. 79, 91 (2007) (aggregating turnout data from 1956-1998).
94. For presidential primary elections, this finding has been documented in JOHN H. ALDRICH, WHY PARTIES? THE ORIGINS AND TRANSFORMATIONS OF POLITICAL PARTIES IN AMERICA 189-92 (1995);
95. NELSON W. POLSBY & AARON WILDAVSKY, PRESIDENTIAL ELECTIONS: STRATEGIES AND STRUCTURES OF AMERICAN POLITICS (12th ed. 2008);
96. JOSEPH A. SCHLESINGER, POLITICAL PARTIES AND THE WINNING OF OFFICE (1991).
97. But see John G. Geer, Assessing the Representativeness of Electorates in Presidential Primaries, 32 AM. J. POL. SCI. 929 (1988);
98. Barbara Norrander, Ideological Representativeness of Presidential Primary Voters, 33 AM. J. POL. SCI. 570 (1989).
99. For Senate elections, this finding is documented in David Brady & Edward P. Schwartz, Ideology and Interests in Congressional Voting: The Politics of Abortion in the US. Senate, 84 PUB. CHOICE 25, 29, 33, 40, 43 (1995);
100. Wayne L. Francis et al., Retrospective Voting and Political Mobility, 38 AM. J. POL. SCI. 999 (1994);
101. Amy B. Schmidt et al., Evidence on Electoral Accountability in the U. S. Senate: Are Unfaithful Agents Really Punished?, 34 ECON. INQUIRY 545-67 (1996);
102. These definitions are taken from Kristin Kanthak & Rebecca Morton, The Effects of Electoral Rules on Congressional Primaries, in CONGRESSIONAL PRIMARIES AND THE POLITICS OF REPRESENTATION 116, 121 tbl.8.1 (Peter F. Galderisi et al. eds., 2001).
103. The number of states using closed primaries is taken from the website of the organization, FairVote. Primaries: Open and Closed, FAIRVOTE. ORG, http://archive.fairvote.org/?page=1801 (last visited Feb. 17, 2011).
104. One important empirical study that documents this finding is Elisabeth R. Gerber & Rebecca S. Morton, Primary Election Systems and Representation, 14 J. L. ECON. & ORG. 304 (1998).
105. Cal. Democratic Party v. Jones, 984 F. Supp. 1288, 1290 n. 2 (E. D. Cal. 1997)
106. aff'd, 169 F.3d 646 (9th Cir. 1999)
107. rev'd, 530 U. S. 567 (2000);
108. Cal. Democratic Party, 984 F. Supp. at 1291.
109. Cal. Democratic Party, 530 U. S. at 567.
110. VOTING AT THE POLITICAL FAULT LINE: CALIFORNIA'S EXPERIMENT WITH THE BLANKET PRIMARY 351-53 (Bruce E. Cain & Elisabeth R. Gerber eds., 2002).
111. Elizabeth Garrett, Democracy in the Wake of the California Recall, 153 U. PA. L. REV. 239, 255 (2004).
112. Samuel Issacharoff, Collateral Damage: The Endangered Center in American Politics, 46 WM. & MARY L. REV. 415, 437 (2004).
113. Of the 16 closed primaries, Obama won 7, and Clinton won 9; of the 24 open or semiopen primaries, Obama won 13, and Clinton won 11. The data on types of primaries is taken from FAIRVOTE. ORG, supra note 90
114. and Richard E. Berg-Andersson, Primary, Caucus, and Convention Results, THE GREEN PAPERS (Dec. 26, 2000), http://www.thegreenpapers.com/PCC/Tabul.html;
115. the data on the 2008 results is based on Election Center 2008: Delegate Score Card, CNN (Aug. 20, 2008, 2:25 PM), http://edition. cnn. com/ELECTION/2008/primaries/results/scorecard/#D.
116. VOTING AT THE POLITICAL FAULT LINE, supra note 96.
117. See Elisabeth R. Gerber, Strategic Voting and Candidate Policy Positions, in VOTING AT THE POLITICAL FAULT LINE, supra note 96, at 192, 210 (concluding that "the evidence strongly suggests that the overall net effect of the blanket primary was to produce more moderate candidates"). In particular, Gerber concluded that this moderating effect was minimal for top-ofthe-ticket races but substantial in state legislative races.
118. Eric McGhee, Open Primaries, 2010 PUB. POL'Y INST. OF CAL. 8 (concluding that the blanket primary led to election of more moderates). Interestingly, in the brief period of time in which the blanket primary was in effect, including the 1998 election, voter participation reached higher levels than it had since 1982; after the Court ruled the blanket primary unconstitutional, rates of participation went back down.
119. Molly Milligan, Open Primaries and Top Two Elections: Proposition 14 on California's June 2010 Ballot, 2010 CTR. FOR GOVERNMENTAL STUDIES 45 n. 28 [hereinafter CGS REPORT].
120. Seth Masket, Primaries and Partisanship, ENIK RISING (March 26, 2010, 6:59 AM), http://enikrising.blogspot.com/2010/03/primaries-and-partisanship. html.
121. See Jesse McKinley, California Voting Change Could Signal Big Political Shift, N. Y. TIMES, June 9, 2010, at A1.
122. Wash. State Grange v. Wash. State Republican Party, 552 U. S. 442 (2008). The Supreme Court left open the possibility that a later constitutional challenge could succeed once more empirical information becomes available concerning how ballots are designed and how this system actually works in practice, particularly whether it causes certain kinds of voter confusion.
123. See Boris Schor, Abel Maldonado is a Liberal Republican (But Only in California), BORIS SCHOR BLOG (Feb. 11, 2010, 1:25 PM), http://bshor.wordpress. com/2010/02/11/abelmaldonado-is-a-liberal-republican-but-only-in-california.
124. CGS REPORT, supra note 101, at 3.
125. See, e.g., Daniel B. Wood, As California Budget Deadlock Drags, State Set To Pay Steep Price, Christian Science Monitor, Aug. 19, 2010, available at http://www.csmonitor.com/USA/Politics/2010/0819/As-California-budget-deadlock- drags-state-set-to-pay-steep-price.
126. Wash. State Grange, 552 U. S. at 442.
127. Washington used a blanket primary from 1934 through 2002; an open primary until 2006; and now the top-two primary. See also Eric McGhee, Electoral Reforms Won't Fix California Gridlock, S. F. CHRON., Mar. 14, 2010, at E4.
128. See generally Richard Briffault, Lani Guinier and the Dilemmas of American Democracy, 95 COLUM. L. REV. 418 (1995) (describing advantages of IRV).
129. This description is taken from the website of Fair Vote, an organization that promotes IRV. How Instant Runoff Voting Works, FAIRVOTE. ORG, http://www.fairvote.org/How-Instant-Runoff-Voting-Works (last visited Feb. 17, 2011).
130. Some have suggested IRV would be particularly effective on general election day in presidential elections, where moderate Democrats or Republicans might be more willing to challenge party leaders, because under IRV they would not split the party as Theodore Roosevelt did to the incumbent Republican President, William Howard Taft, in 1912. But voters would also be more willing to vote for independents, because they would not feel they were wasting their votes, as under the current system. See Larry Diamond, Comment, in 2 RED AND BLUE NATION? CONSEQUENCES AND CORRECTION OF AMERICA'S POLARIZED POLITICS 295, 299 (Pietro S. Nivola & David W. Brady eds., 2008).
131. See Nelson W. Polsby, Comment, in 2 RED AND BLUE NATION?, supra note 118, at 286.
132. SETH E. MASKET, NO MIDDLE GROUND: HOW INFORMAL PARTY ORGANIZATIONS CONTROL NOMINATIONS AND POLARIZE LEGISLATURES 54-87 (2009).
133. To put this in technical terms, parties organize politics for voters along a onedimensional space, such as a liberal-to-conservative continuum. In a study that compares the Kansas legislature to the Nebraska legislature, one study found that Nebraska legislative politics lacked this feature, while Kansas legislative politics had it. Gerald C. Wright & Brian F. Schaffher, The Influence of Party: Evidence from the State Legislatures, 96 AM. POL. SCI. REV. 367 (2002). This study also noted that "it is difficult to imagine how voters could achieve even general policy direction when conflict patterns in the legislature are unstable and unstructured.... [N]onpartisan elections effectively break the policy linkage between citizens and their representatives in the statehouse."
134. "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators." U. S. CONST, art. I, § 4.
135. For a summary of these laws, see Richard H. Pildes, The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote, 49 How. L. J. 741 (2006).
136. Indeed, the Supreme Court has read this power expansively. See, e.g., Smiley v. Holm, 285 U. S. 355 (1932) (holding that Congress generally has regulatory power under the United States Constitution over the entire field of election process);
137. Newberry v. United States, 256 U. S. 232, 255 (1921);
138. United States v. Mosley, 238 U. S. 383, 386 (1915);
139. Ex parte Yarbrough, 110 U. S. 651, 661 (1884);
140. Ex parte Siebold, 100 U. S. 371, 387 (1880);
141. Ex parte Clarke, 100 U. S. 399 (1879).
142. See Cal. Democratic Party v. Jones, 530 U. S. 567 (2000).
143. For a full description and analysis of Cal. Democratic Party, see Richard H. Pildes, Democracy and Disorder, 68 U. CHI. L. REV. 695 (2001). (Pubitemid 33656746)
144. Cal. Democratic Party, 530 U. S. at 567.
145. Richard H. Pildes, Foreword, The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 29, 101-30 (2004) [hereinafter Pildes, Constitutionalization] (suggesting that Washington's blanket primary system was facially constitutional and did not severely burden respondent Republican Party's associational rights).
146. Wash. State Grange v. Wash. State Republican Party, 552 U. S. 442 (2008).
147. Brownstein, for example, apparently informed by "lawyers in both parties", concludes that the Supreme Court has held, or will hold, open primaries unconstitutional. Hence, he suggests that only if state parties decide to choose open primaries will such primaries be adopted. BROWNSTEIN, supra note 3, at 378-89. The Supreme Court has certainly not yet held open primaries unconstitutional and, to the extent Brownstein is repeating predictions, I think those predictions are much too pessimistic about the likely constitutionality of open primaries.
148. Richard H. Pildes, The Constitution and Political Competition, 30 NOVA L. REV. 253 (2006) [hereinafter Pildes, The Constitution and Political Competition].
149. See, e.g., ALDRICH, supra note 89, at 12-14.
150. LEVENDUSKY, supra note 8, at 131-32.
151. See John N. Friedman & Richard T. Holden, The Rising Incumbent Reelection Rate: What's Gerrymandering Got To Do with It?, 71 J. POL. 593, 593 (2009).
152. For a summary of that data, see Gary C. Jacobson, Comment, in 1 RED AND BLUE NATION?, supra note 26, at 284-90 [hereinafter Jacobson, Comment];
153. Pildes, The Constitution and Political Competition, supra note 131, at 256-60.
154. For a recent general overview of these issues, see generally PARTY LINES: COMPETITION, PARTISANSHIP, AND CONGRESSIONAL REDISTRICTING (Thomas E. Mann & Bruce E. Cain eds., 2006).
155. This data is from ABRAMOWITZ, supra note 2, at 145. The definitions used for "safe", "marginal", and "high-risk" seats are provided there.
156. See Nolan M. McCarty, Keith T. Poole, & Howard Rosenthal, Does Gerrymandering Cause Polarization?, 53 AM. J. POL. SCI. 666-80 (2009). This lack of competitive elections for Congress contrasts notably with the greater competitiveness seen in Senatorial and Gubernatorial elections. While only one of 11 House elections was decided by less than 10 percentage points in 2002, fully half of state governorships and Senate seats contested on the same day-in elections impervious to political gerrymandering-were instead competitive enough to be decided by less than this ten-point margin.
157. Alan I. Abramowitz et al., Incumbency, Redistricting, and the Decline of Competition in U. S. House Elections, 68 J. POL. 75 (2006).
158. Eric Uslaner, The 2006 Midterm Elections in the United States and the Consequences for Policy-Making in the 110th Congress, http://www.bsos.umd.edu/ gvpt/uslaner/uslaner2006elections.ppt. Uslaner also notes, as have others, that electoral margins of victory have been increasingly dramatically. Thus, from 1992 to 1994, only about 40 House seats were won by margins of 5% or more, which would make them non-competitive by certain standard definitions; by 2004, only 10 House seats were won by as little as a 5% margin. By the late 1990s, 75% of House incumbents were winning by margins of 60% or more.
159. See Jacobson, The 2008 President and Congressional Elections, supra note 7, at 1;
160. Gary C. Jacobson, Referendum: The 2006 Midterm Congressional Elections, 122 POL. SCI. Q. 1 (2007).
161. See Samuel Issacharoff & Jonathan Nagler, Protected from Politics: Diminishing Margins of Electoral Competition in U. S. Congressional Elections, 68 OHIO ST. L. J. 1121, 1129 (2007). Issacharoff and Nagler laid out their findings: [B]etween 1946 and 1998 the party out-of-power would have required an average gain of 1.5% of the vote to pick up five additional seats and 2.3% to pick up an additional ten seats. These are thin margins corresponding to the presence of competitive districts. By contrast, in 2004, the Democrats would have needed to pick up 4.9% to gain five seats and 5.7% to pick up ten seats. Even in watershed years in which one party surged in popular support at the expense of the other (1946, 1964 and 1994, for example), the buffer in the most at-risk districts was decidedly thinner.
162. For a description and survey of these alternative institutions in other democracies, and analysis of the consequences, see Pildes, Constitutionalization, supra note 128, at 78-81.
163. See Thomas Brunell & Bernard Grofman, Evaluating the Impact of Redistricts On District Homogeneity, Political Competition, and Political Extremism in the U. S. House of Representatives, 1962 to 2006, in DESIGNING DEMOCRATIC GOVERNMENT: MAKING INSTITUTIONS WORK 117, 125 (Margret Levi et al. eds., 2008). One important study concludes, though, that no meaningful difference in incumbent reelection rates exists between partisan versus bipartisan gerrymandering plans.
164. Hanh Kim Quach & Dena Bunis, All Bow to Redistrict Architect: Politics Secretive, Single-Minded Michael Berman Holds All the Crucial Cards, ORANGE CNTY. REGISTER, Aug. 26, 2001, at A1, available at http://fairvote.org/ redistricting/reports/remanual/usnews6.htni#arch.
165. Data and analysis in this paragraph are from Jamie L. Carson & Michael H. Crespin, The Effect of State Redisricting Methods on Electoral Competition in United States House of Representatives Races, 4 ST. POL. & POL'Y Q. 455 (2004).
166. Pildes, The Constitution and Political Competition, supra note 131, at 259.
167. ABRAMOWITZ, supra note 2, at 147.
168. See also Jacobson, Comment, supra note 135, at 284-85 (noting that most of the loss of closely balanced House districts occurred between 1994 and 2000).
169. See generally BILL BISHOP, THE BIG SORT: WHY THE CLUSTERING OF LIKE-MINDED AMERICA IS TEARING US APART (2008).
170. See Keiko Ono, Electoral Origins of Partisan Polarization in Congress: Debunking the Myth, 2005 EXTENSIONS 1-5. Although Gary Jacobson, a leading analyst of congressional elections, earlier concluded that redistricting practices were "a major reason" for the decline in competitive elections, more recent work by Jacobson concludes that increasing partisan consistency and polarization in voters' voting patterns in all elections, districted or not, contributes more than redistricting to the decline in competitive congressional elections.
171. See Gary C. Jacobson, Competition in U. S. Congressional Elections 8 (March 6, 2006) (unpublished draft presented at conference, "The Marketplace of Democracy"). In earlier work shortly after the 2002 elections, Jacobson attributed a strongly causal role to redistricting: "Redistricting patterns are a major reason for the dearth of competitive races in 2002 and help to explain why 2002 produced the smallest number of successful House challenges (four) of any general election in U. S. history."
172. Gary C. Jacobson, Terror, Terrain, and Turnout: Explaining the 2002 Midterm Elections, 118 POL. SCI. Q. 1, 10-11 (2003).
173. See, e.g., Bruce Cain, From Equality to Fairness: The Path of Political Reform, in PARTY LINES, supra note 135, at 21 ("[T]here is evidence at the individual district level that more competitive seats lead to more moderate members and that 'cross-pressured' members are more likely to have more centrist voting scores.");
174. Jamie Carson et al., Redistricting and Party Polarization in the US. House of Representatives, 35 AM. POL. RES. 878, 899 (2007) ("The findings
175. See, e.g., Girish J. Gulati, Revisiting the Link Between Electoral Competition and Policy Extremism in the U. S. Congress, 32 AM. POL. RES. 495 (2004);
176. Thomas E. Mann, Polarizing the House of Representatives: How Much Does Gerrymandering Matter, in 1 RED AND BLUE NATION?, supra note 26, at 276 (concluding, after data analysis, that "[p]artisan polarization in the House clearly operates to a substantial extent independent of the competitiveness of congressional districts");
177. MASKET, supra note 120, at 84. In California, the former era-the Progressive Era-ran from 1910 to 1952, when candidates could cross-file in several parties' primaries without identifying their own party affiliation.
178. ABRAMOWITZ, supra note 2, at 150. Based on regression analysis, Abramowitz concludes that district partisanship (how safe or competitive a district is) accounts for about 20% of the overall level of ideological polarization in Congress today.
179. See also MASKET, supra note 120, at 4 (noting that congressional districts nearly evenly divided between Democrats and Republicans nonetheless elect members who are either extremely liberal or conservative).
180. ABRAMOWITZ, supra note 2, at 149.
181. ABRAMOWITZ, supra note 2, at 154-55. One study explores whether states that used relatively more independent districting processes for the first time in 2002, in the wake of the 2000 census, ended up with less polarized congressional delegations. Using a very broad definition of "relatively more independent districting processes", the study found five states that had made this change: Alabama, Arizona, Connecticut, Idaho, and Maine. The study found no meaningful change in partisanship for the first three, but did find that partisanship in Idaho and Maine declined. But whether this decline, in even two of the five states, can be attributed to the change in districting practice is difficult to infer because of how broadly the study defines "relatively more independent" districting. Idaho, for example, shifted to a binding, bipartisan redistricting commission with no nonpolitical tiebreaking member. Maine, which has only two seats in Congress, did not use an independent districting commission at all, but empowered its courts to redistrict if a redistricting deadline for the legislature had passed, but the courts were not needed for the 2002 redistricting. I would not hazard any generalizations from this study.
182. See David G. Oedel, et al., Does the Introduction of Independent Redistricting Reduce Congressional Partisanship?, 54 VILL. L. REV. 57 (2009).
183. The key decision is Thornburg v. Gingles, 478 U. S. 30 (1986).
184. See Pildes, At War With Itself?, supra note 42, 1151-61.
185. For the history of the role of racial polarization analysis in VRA implementation, see Samuel Issacharoff, Polarized Voting and the Political Process, 90 MICH. L. REV. 1833 (1992).
186. The raw data is available in Dubious Democracy 2008, FAIRVOTE. ORG, http://www.fairvote.org/dubious-democracy-2008. Calculations have been made based on this data.
187. Thomas Mann also notes this point. See Thomas E. Mann, Redisricting Reform: What is Desirable? Possible?, in PARTY LINES, supra note 135, at 99 ("Protecting racial and ethnic minorities, an overriding federal requirement, can reduce the number of competitive seats and diminish the responsiveness of legislative elections to shifts in public sentiment.").
188. The Arizona process led to a series of conflicts and competing lawsuits over the state districts among those who thought the Commission should have created more districts that were competitive. The U. S. Department of Justice concluded the initial plan the Commission proposed violated the VRA. For the last stage in the litigation and a summary, see Ariz. Coal. v. Redistricting Comm'n, 208 P.3d 676 (Ariz. 2009).
189. The population figures are taken from the 2008 American Community Survey, which is a periodic update to the census, produced through statistical sampling rather than an "actual enumeration. " American Community Survey, U. S. CENSUS BUREAU, http://www.census.gov/acs.
190. Vieth v. Jubelirer, 541 U. S. 267 (2004).
191. WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS 62 (Johns Hopkins Univ. Press 1981) (1885).
192. See ALDRICH, supra note 89, at 227-28;
193. ROHDE, supra note 2, at 4-5;
194. Joseph Cooper & David W. Brady, Institutional Context and Leadership Style: The House from Cannon to Rayburn, 75 AM. POL. SCI. REV. 411, 413 (1981).
195. For more on the decline of strong party unity through this period, see ALDRICH, supra note 89, at 228. The changes Democrats imposed occurred from 1970 to 1977, though Rohde argues the effects of these changes on party discipline were gradual and did not fully manifest themselves until 1983.
196. ROHDE, supra note 2, at 16.
197. The best narrative of the internal changes in House rules and practices that have centralized power in party leaders over the last generation is ROHDE, supra note 2.
198. JACOB S. HACKER & PAUL PERSON, OFF CENTER: THE REPUBLICAN REVOLUTION AND THE EROSION OF AMERICAN DEMOCRACY 146 (2005).
199. BLACK & BLACK, supra note 61, at 398.
200. HACKER & PIERSON, supra note 179, at 147.
201. This is the general theme of HACKER & PIERSON, supra note 179.
202. BROWNSTEIN, supra note 3, at 342.
203. ROHDE, supra note 176, at 177-79.
204. The language congressional reformers used is revealing: "This oneness of design, this 'harmony of action', this 'unity of purpose'... [was] not consistent with the genius and spirit of our institutions;" it was "not the object for which the framers of this Government labored." The Framers had "sought not to concentrate power in the hands of a few men to the end that 'harmony of action' and 'unity of purpose' might be secured, but their great aim was the general diffusion of power." These passages are quoted in WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900, at 116 (1982), which makes the argument that these reforms were part of the general late nineteenth century effort to fragment and diffuse political power in the combined wake of Jacksonian democracy and the demise of federalism. This demise and the rise of Jacksonian democracy had given America's institutions a much more majoritarian thrust.
205. U. S. CONST. art. I, § 5.
206. Most studies show the House to be somewhat more polarized than the Senate over the last generation, but not significantly so. Sean M. Theriault & David W. Rohde, Former Republican Representatives and Party Polarization in the U. S. Senate 2 (Oct. 24, 2009) (unpublished manuscript for Conference on Bicameralism);
207. Fleisher & Bond, The Shrinking Middle, supra note 2, at 429. One 2006 study that compares increasing House versus Senate polarization from 1973 to 2004 concluded that over this period House Republicans became 62% more polarized, compared to a 51% change for Senate Republicans, while House Democrats became 33% more polarized, compared to a 16% change for Senate Democrats.
208. Theriault, Party Polarization, supra note 6, at 487.
209. Additional important works in the emerging literature on Senate polarization are Frances E. Lee, Agreeing to Disagree: Agenda Content and Senate Partisanship, 1981-2004, 32 LEGIS. STUD. Q. 199 (2008)
210. and SEAN M. THERIAULT, PARTY POLARIZATION IN CONGRESS (2008).
211. Sean M. Theriault, The Case of the Vanishing Moderates: Party Polarization in the Modem Congress 17 (Sept. 23, 2003) (unpublished manuscript on file with author).
212. FRANCES E. LEE, BEYOND IDEOLOGY: POLITICS, PRINCIPLES, AND PARTISANSHIP IN THE U. S. SENATE 128-29 (2009).
213. Allison Stevens, Senators Pack a Sharper Edge, 61 CQ WEEKLY 3069 (2003). Even in the early 2000s, when Simpson made these comments, some political scientists were reaching this conclusion about House polarization contributing to Senate polarization.
214. See Nicol C. Rae & Colton C. Campbell, Party Politics and Ideology in the Contemporary Senate, in THE CONTENTIOUS SENATE: PARTISANSHIP, IDEOLOGY, AND THE MYTH OF COOL JUDGMENT 8 (Colton C. Campbell & Nicol C. Rae eds., 2001);
215. Barbara Sinclair, Bipartisan Governing: Possible, Yes; Likely, No, 34 PS: POL. SCI. & POL. 75, 81 (2001).
216. Gary C. Jacobson, A Collective Dilemma Solved: The Distribution of Party Campaign Resources in the 2006 and 2008 Congressional Elections 4 (2009) (unpublished manuscript on file with author) [hereinafter Jacobson, A Collective Dilemma Solved].
217. See, e.g., Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 1705 (1999);
218. Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U. C. DAVIS L. REV. 663 (1997).
219. Jacobson concludes that 87% of party money, but only 42% of candidate funds, was spent on competitive races. Jacobson, A Collective Dilemma Solved, supra note 200, at 15.
220. Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U. S. 604, (1996).
221. See MORRIS P. FIORINA, DIVIDED GOVERNMENT 6-14 (2d ed. 1996).
222. See JAMES L. SUNDQUIST, CONSTITUTIONAL REFORM AND EFFECTIVE GOVERNMENT 93 (revised ed. 1992).
223. CGS REPORT, supra note 101, at 3;
224. SUNDQUIST, supra note 207, at 96-97.
225. see MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER 22-25 (2003).
226. DAVID MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, 1946-2002, at 119-35 (2005).
227. I have questioned it elsewhere. See generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006).
228. For example, no congressional committee subpoenaed the White House for the first six years of the Bush II presidency, when Republicans controlled the House and the Senate for all but about eighteen months of that period, despite the momentous issues engaged in the aftermath of 9/11. BROWNSTEIN, supra note 3, at 274.
229. see also Bruce Ackerman, The Emergency Constitution, 113 YALE L. J. 1029, 1045-56 (2004);
230. David Fontana, Government in Opposition, 119 YALE L. J. 548, 575-79 (2009).
231. See John Wildermuth, Efforts Seeks to Scrap Two-Thirds Vote Rule, S. F. CHRON., Feb. 25, 2009, available at http://articles.sfgate.com/2009-02-25/news/ 17189120-l-two-thirdsrule-majority-rule-budget.
232. See generally GREGORY J. WAWRO & ERIC SCHICKLER, FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U. S. SENATE 266-68 (2007) (describing process leading to the 1975 change). As these authors note, "The primary legislative impact of obstruction today is to expand the 'gridlock interval' to include an additional ten senators (up to the 60th percentile senator) on the opposite side of the status quo from the president. This expansion of the gridlock interval often has a major impact on policy....."
233. See SARAH A. BINDER & STEVEN S. SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE U. S. SENATE 208-09 (1997).
234. WAWRO & SCHICKLER, supra note 219, at 279-80.
235. See E. E. SCHATTSCHNEIDER, PARTY GOVERNMENT (1942).
236. See Austin Ranney, Toward A More Responsible Two-Party System: A Commentary, 45 AM. POL. SCI. REV. 488, 488-499 (1951).
237. See, e.g., AUSTIN RANNEY, THE DOCTRINE OF RESPONSIBLE PARTY GOVERNMENT (1954). This view goes back at least to Woodrow Wilson, who had called for stronger parties as part of a package of reforms that would have effectively done away with divided government.
238. See WILSON, supra note 174.
239. The most fully developed recent articulation of this view is found in NANCY L. ROSENBLUM, ON THE SIDE OF THE ANGELS: AN APPRECIATION OF PARTIES AND PARTISANSHIP (2008).
240. See also Lloyd N. Cutler, Some Reflections About Divided Government, 18 PRESIDENTIAL STUD. Q. 85, 489 (1988);
241. Michael A. Fitts, The Vices of Virtue: A Political Party Perspective on Civic Virtue Reforms of the Legislative Process, 136 U. PA. L. REV. 1567, 1634-35 (1988);
242. Elizabeth Garrett, Is the Party Over? Courts and the Political Process, 2002 SUP. CT. REV. 95, 101-03;
243. Elizabeth Garrett, The Law and Economics of "Informed Voter" Ballot Notations, 85 VA. L. REV. 1533, 1548-49 (1999).
244. See, e.g., Alan Abramowitz, Comment, in 1 RED AND BLUE NATION?, supra note 26, at 75 ("Various measures of political interest and involvement indicated that the American public was more engaged in the 2004 campaign than in any presidential campaign in the past halfcentury.").
245. ABRAMOWITZ, supra note 2, at 159.
246. See William A. Galston and Pietro S. Nivola, Delineating the Problem, in 1 RED AND BLUE NATION?, supra note 26, at 11.
247. For the data from one of the leading experts on voter turnout, see Michael McDonald, Voter Turnout, UNITED STATES ELECTION PROJECT, http://elections.gmu.edu/voter-turnout.htm.
248. ABRAMOWITZ, supra note 2, at 159.
249. Although David Mayhew famously argued that divided government did not produce any less major legislation than unified government, MAYHEW, supra note 211, at 129, other studies have reached a different conclusion once the character of the political parties of different eras is taken into account.
250. See, e.g., SARAH A. BINDER, STALEMATE: CAUSES AND CONSEQUENCES OF LEGISLATIVE GRIDLOCK (2003);
251. Sarah A. Binder, The Dynamics of Legislative Gridlock, 1947-1996, 93 AM. POL. SCI. REV. 519, 527 (1999).
252. Indeed, Nolan McCarty, The Policy Effects of Political Polarization, in THE TRANSFORMATION OF AMERICAN POLITICS: ACTIVIST GOVERNMENT AND THE RISE OF CONSERVATISM 223 (Paul Pierson & Theda Skocpol eds., 2007), concludes that Congress since World War II has tended to enact its most significant legislation during its least polarized periods, and that polarization generally has significantly negative effects on legislative output. McCarty, Poole, and Rosenthal conclude that polarization over the last 25 years has reduced the responsiveness of national political institutions to changing economic and social problems, has shifted influence to the presidency and less accountable institutions, such as the courts, and has generally weakened the ability of the legislative branch to engage in policymaking.
253. See, e.g., WILLIAM HOWELL, POWER WITHOUT PERSUASION (2003);
254. DAVID E. LEWIS, PRESIDENTS AND THE POLITICS OF AGENCY DESIGN (2003);
255. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001).
256. See, e.g., WAWRO & SCHICKLER, supra note 219, at 26-29 (noting the much greater costs to the minority party of filibustering before time constraints on the Senate gave way to "costless filibustering" late in the twentieth century). One way to measure the use of the filibuster is by the number of cloture motions filed; these are filed not only to shut off actual filibusters but to preempt likely anticipated ones. In the 1960s, there were no more than 7 cloture votes in any term; by 2010, the number of votes on cloture per Senate term had risen to no fewer than 49. The 110th Congress broke the record for cloture votes, reaching 112 at the end of 2008.
257. See Senate Action on Cloture Motions, http://www.senate.gov/pagelayout/ reference/cloture-motions/clotureCounts.htm (last visited Feb. 17, 2011);
258. Margaret Talev, Senate Tied in Knots by Filibusters, McCLATCHY (July 20, 2007), http://www.mcclatchydc.com/2007/07/20/18218/senate-tied-in-knots-by- filibusters.html;
259. Cloture Motions, 110th Congress, http://www.senate.gov/pagelayout/ reference/cloture-motions/l10.htm (last visited Feb. 17, 2011).
260. This conclusion is reflected in one of the leading political science studies of polarization. See SINCLAIR, supra note 2, at 184 (2006) ("Surely this [hyperpolarized] atmosphere forecloses principled compromises that might otherwise be possible.").