The Power of Congressional Incumbency: How Unfair Electoral Advantage Damages American Democracy

Congress, Policy, Parties, & Institutions

The Power of Congressional Incumbency: How Unfair Electoral Advantage Damages American Democracy

Congress, Policy, Parties, & Institutions –

The Power of Congressional Incumbency: How Unfair Electoral Advantage Damages American Democracy ©

Abstract

The United States Congress – particularly the House of Representatives and its members appointed in proportion to state population – was designed as the branch of government that answered directly to the people. The federal judiciary, appointed for life to positions of great power, are largely beyond reach of the electorate, barring misconduct or malfeasance; similarly, the executive branch – the President – was created to wield executive authority, to be a leader and a figurehead, less influenced by changes in popular opinion. But the Congress was supposed to be different: the House of Representatives – and eventually the Senate, after 1913 ratification of the Seventeenth Amendment to the Constitution – is elected directly by the popular vote of the people, and was designed as a check on both judicial and executive power (Mayhew, 1974). Unfortunately, one simple electoral reality has significantly limited the U.S. Congress as a true “voice of the people”: specifically, the fact that incumbents are almost universally re-elected. The factual truth is that once an individual is elected to Congress – especially to the U.S. Senate – he or she will generally retain that seat as long as they wish to continue occupying the office (Fiorina, 1997). Going back at least a century, the single greatest advantage in any Congressional election was being an incumbent; that is, having already been elected once previously. In the 2004 election cycle, for example, the re-election rate for sitting members of Congress was a stunning 98.8%; as one writer noted, such an undemocratic, iron-fisted hold on the power of the status quo might have “made even Soviet politicians blush” (Radmacher, 2006). In fact, ironically enough even though the British House of Lords – one of the Houses of Parliament – consists entirely of members appointed for life, it nevertheless “has more turnover than the U.S. Congress” (Gear, 2000). In short, the power of Congressional incumbency functions to undermine the American system of democracy; it is simple common sense to point out that, if the sitting legislator is almost guaranteed to be re-elected, the election is de facto invalid. True democracy, in both the theoretical and practical sense, would require that, to at least some degree, all candidates compete on an equal playing field, with their election depending on how the electorate responds to their views, positions, and personal attributes; the inherent advantage of incumbency in Congressional elections is thus antithetical to the democratic ideal because it negates any true choice for the voters. (Merriner & Senter, 1999). The political and sociological consequences are clear – and so are the root causes: they include campaign financing, partisan electoral redistricting, media visibility granted to incumbents, and disparity in available funding; all of these must be addressed if Congressional elections are to be returned to their populist origins.

Uncontested and Uncompetitive Elections

As with all exercises in problem-solving, the first step in identifying workable solutions is defining the size and scope of the problem; and by any definition, the inherent and inherently anti-democratic advantages of Congressional incumbency are enormous. In fact, party leaders on both sides of the American political continuum are so well aware of the reality of the power of incumbency that firmly held Congressional seats are rarely even legitimately contested. For example, during the 2000 election cycle, political scientists noted that “out of 435 House seats, 64 members this year have no major-party opponent, according to the Center for Voting and Democracy. About 300 or so face only token opposition, according to experts and House members” (Weiser, 2000). The truth is that, on a state-by-state and district-by-district basis, for reasons that are both historical and political, the vast majority of Congressional seats are firmly held by one party – or by one person. In this states, or in those districts, it simply makes no sense for the minority party or non-incumbent candidate to make more than a token effort; after all, they are almost certain to fail. The data is clear: “Fewer than one in ten congressional seats were won by less than 10% in 1998, and more than 80 percent of districts could be certified as “safe” for one party a year ago. Voters in those districts will have no role in shaping the next Congress” (Mortimer, 2000). During the 2000 elections, “Rep. Tom Davis, R-Va., chairman of the national Republican Congressional Committee … boasted to reporters about GOP incumbents: ‘185 guys are back without worrying about it.’ Democrats put their number of untouchable incumbents at 190, said John Del Cecato, spokesman for the Democratic Congressional Campaign Committee. That adds up to more than 85 percent of House members who are considered shoo-ins” (Weiser, 2000). The effect of this entrenched incumbency not only de-legitimizes the federal legislature, it also spills over into the Presidential election, and serves to effectively negate the votes of citizens in all but a handful of states that are actually contested:

The presidential election, of course, is actually 50 separate winner-take-all state elections. The candidate with the most votes in each state wins all of that state’s electoral votes. (Nebraska and Maine allocate some of their electoral votes by congressional district.) Most states are reliably won by one major party. That means that the only real way people in those states can help their candidate (aside from sending money) is to move to one of eight or 10 “battleground states,” like Michigan or Ohio, whose electoral votes will decide the election. (Mortimer, 2000).

The situation in the House of Representatives is similar; with the vast majority of races either non-competitive or barely competitive – with so many races barely even being contested by the opposition party – a significant number of the House elections simply don’t matter in terms of which side controls the legislature. “The struggle for control of the House centers on 20 to 30 competitive districts such as Lansing, Mich.; Montgomery County, Pa.; suburban Chicago; and a district around Muskogee, Oklahoma. The 200 million Americans who live outside the battleground districts are just spectators” (Weiser, 2000).

Statistical Evidence

The attitude of both major parties – the willingness to abandon most districts and states as non-competitive – raises an immediate question: is their basic premise supported by factual data? The unfortunate answer is clearly yes. Since at least the 1970s, re-election rates for members of the House of Representatives has never fallen below 90%; the figure has been the same for the Senate since the early 1980s (Merriner & Senter, 1999, p. xxi). The more recent statistics can only be described as stunning: in the 2004 elections, 401 incumbent members of the House of Representatives ran for re-election; of those 401 that sought to return to office for another term, 396 were successful. A mere five failed to win re-election. The picture is even bleaker in the Senate: in 2004, of 26 Senators up for re-election, 25 were successful. Just a single lone incumbent managed to lose a Senate race (“Why?). Obviously the attitude of party leaders that only a very few districts and states actually matter is well-founded; the question to be answers is what are the origins for this phenomenon.

Financial Issues/Campaign Finance Reform

Money is perhaps the single biggest reason that incumbents are returned to office so often, and their incumbency is actually the primary factor in their ability to raise funds; this sort of cyclical effect is the most powerful engine driving the re-election of incumbents in Congress. “It’s rare for an incumbent to face a challenger with a campaign war chest even half the size… Whoever raises the most money almost always wins. And incumbents almost always raise the most money” (Radmacher, 2006). This creates a self-perpetuating cycle: since the candidate with the most money usually wins, and incumbents almost always have more funds available – the incumbent has a distinct advantage. In 2004, for example, incumbents in the House of Representatives outspent their opponents by an average of $700,000; in the Senate, incumbents outspent challengers by an average of more than $4 million (‘Why?”). With those figures in mind, the fact that 95%-99% of incumbents are re-elected in any given election cycle is unsurprising. But the question then becomes: how do incumbents so reliably raise so much more campaign money – and the answer is invariably that they do so by exploiting the media advantages afforded to incumbents.

The Media Advantage

Another key advantage of incumbency is media exposure. First and foremost, easy access to mass media makes raising funds for election campaigns much more efficient – and the newspapers and magazines are eager to help incumbents get all the exposure they need:

Sitting members of Congress are almost universally recognized in their districts. Having waged at least one previous campaign, and a successful one at that, and then serving in Congress for two years (House members) or six years (Senators) makes a sitting member of Congress something of a household name among his or her constituents. Moreover, members of the U.S. House and Senate have easy and ready access to the news media and make regular appearances on television and radio programs and are frequently mentioned in newspaper articles and editorials. (“Why?”)

The result of this automatic media exposure once again creates a sort of cyclic pattern that almost ensures re-election. Incumbency leads to exposure from a variety of sources, particularly in more recent decades, thanks to the Internet and cable television. “Both House and Senate members lay claim to automatic media attention, increasing their exposure to their constituents. Given that most electoral politics is now played through the media this factor is of immense importance. In order to hold a modern campaign, most campaign spending is directed at media outlets. House members have the ability to appear, virtually at will, on the Cable-Satellite Public Affairs Network (C-SPAN), which televises House sessions each day to viewers in some 17 million homes” (Walsh, 1984, p. 31). As a result of this exposure, the incumbent gains unbeatable name recognition in his district or state – that makes fund-raising almost automatic. The constituents already know the incumbent, whereas the challenger must first create that recognition before any voters will contribute to a campaign.

Perhaps even more important than the fund-raising benefit of the media exposure given to incumbents is the value of the exposure itself. Even if appearances on cable talk shows and C-Span and local media doesn’t raise money, it creates a level of awareness in the constituency that no challenger could possibly meet – even with unlimited funds. Perhaps the clearest recent example of this principle could be seen in the case of South Carolina Senator Strom Thurmond. Although he was approaching 100 years old and clearly not able to perform his Senatorial duties, the “adoration” of local and state media made it virtually impossible for any challenger to unseat the long-time Senator. In fact, he was so heavily supported in the media that he hadn’t been required to actually debate an opposing candidate in more than 50 years! (Merriner & Senter, 1999, p. 63). These triple advantages of mass exposure, efficient fund-raising, and media support can essentially end any opposition to an entrenched incumbent, which is precisely why dozens of races go entirely uncontested by the other major party.

Re-Districting

A final advantage of incumbents lies in the power of Congress to re-draw the lines if their own districts, commonly referred to as “re-districting.” This power might seem minor at first glance, but in reality it can instantly ensure major party control of a district for decades. The reason is that lines can be drawn to include specific social or ethnic demographics that will almost certainly vote largely as single blocks; for example, a Democrat might seek to gerrymander a district to include more urban and minority areas, while a Republican might seek to include more rural or middle-class areas. Thus, there is once again a cycle in place that serves to strengthen rather than weaken incumbency: once elected to office, a Congressman can gerrymander his district to make it even more likely that he’ll win the election in the next cycle. In other words, “the parties get to draw the districts, which lets them choose precisely which voters will be allowed to choose candidates in November” (Gear, 2000). This “nearly universal gerrymandering of congressional districts to provide safe seats for members of both parties” is a particularly pernicious practice, because once the district is gerrymandered, it becomes politically meaningless; unless there are major shifts in demographics, the electoral outcome is virtually certain for that district (Radmacher, 2006).

Conclusions

These are the realities of the current electoral situation in American Congressional elections: because of financial issues, media saturation, and rampant gerrymandering of districts, incumbents almost always win re-election, with the elections themselves thus rendered almost meaningless. Solving the problem will not be easy, since any attempt at reform can potentially run into Constitutional protections of free speech. It is, for example, impossible to bar local media from extensively covering local politicians; for that reason, eliminating the incumbency advantage will never occur. However, reforms could be instituted, particularly in terms of campaign financing laws and fairness in media coverage, that could make some headway into returning Congressional elections to what they were designed to be – the voice of the people as they chose their representative leaders.

References Cited

Fiorina, Morris P. (1977) Congress: Keystone of the Washington Establishment, New

Haven: Yale University Press

Gear, John. (2000, Oct. 17). “Cash Won’t Turn Race for Congress; Want to Know

Who Will Win? Check Districts Partisan Affiliations.” Lansing State Journal.

Mayhew, David. (1974) Congress: The Electoral Connection. New Haven: Yale U

Press

Merriner, James L. and Senter, Thomas P. (1999) Against Long Odds, Westport:
Praeger

Mortimer, Lee. (2000, Nov. 15). “Elections Give Voters Too Little Say.” The

Progressive Populist, Vol. 6, No. 20.

Radmacher, Dan. (2006, Oct. 26). “The Advantages of Incumbency Stack the

Deck.” The Roanoke Times.

Walsh, Kenneth T. (1984, Oct. 29). “Why “In’s” in Congress are So Hard to Beat.”

U.S. News & World Report, v97, p. 31(1)

Weiser, Carl. (2000, Oct. 20). “For Most Incumbents in Congress, Re-Election is a

Sure Bet.” The Ithaca Journal.

“Why Are Sitting Members of Congress Almost Always Re-elected?” This Nation.

Available online at: http://www.thisnation.com/question/016.html (7 Nov. 2006).

Policy-Making and Social Legislation: Congressional Legislative Involvement in the Gay Marriage Debate

Congress, Policy, Parties, & Institutions

Policy-Making and Social Legislation: Congressional Legislative Involvement in the Gay Marriage Debate

Harvard University – Public Policy

Congress, Policy, Parties, & Institutions –

Policy-Making and Social Legislation: Congressional Legislative Involvement in the Gay Marriage Debate ©

Exploration of the specific legislative processes involved in the formation of public policy, particularly at the federal level, is most effectively accomplished through analysis of single-issue congressional action. While there a myriad of potential choices for analysis, social legislation is arguably more illustrative than fiscal policy or international affairs, because the issues involved are both simpler to define and emotionally and constitutionally polarizing. In recent years, Congress has taken action on a number of social issues ranging from prayer in schools to affirmative; however, the most widely reported recent legislative attempts to manipulate public social policy involve the current debate over gay marriage. By analyzing debate and passage of specific legislation, the congressional processes can be explicitly illustrated.

Understanding exactly how Congress became engaged in the gay marriage debate first requires a fundamental understanding of how Congress functions. Just about every school-age child in the United States learns enough about the workings of the federal government to explain the most basic ways in which the Congress functions. Specifically, it is commonly understood that Congress is a bi-cameral legislature made up of the Senate and House of Representatives, two bodies which together comprise the legislative branch of government – on of the three branches, along with the executive and judicial branches. However, for those who do not work directly within the political arena, the actual manner in which Congress proposes and passes legislation and acts as a check against the unbalanced power of the other federal branches of government is not clearly understood. The reality is that understanding congressional action requires an understanding of the political parties, the committees, the staff, the caucuses, and the way in which Congress interacts with the President.

Political parties are simply groups which work together to advance common political goals, engage in collective fund raising, and serve as focal points for the ideological identities of their candidates. Within the Congress, the two major political parties – the Republicans and Democrats – serve as opposing forces, generally in conflict on certain key ideas. Democrats favor larger government, higher taxes, and more direct governmental involvement in the lives of citizens; Republicans view the federal government as having a much smaller role, and thus favor a smaller government, lower taxes, and less direct government action – preferring to leave power to state and local governments. As the two parties that control congress, each party provides leadership for its members. In the House of Representatives, for example, the senior member of the majority party – which is the Republicans at the moment – is the House Majority Leader; the minority party holds similar minority positions, and there are similar positions in the Senate. These leadership positions are of critical importance in introducing legislation, in leading party membership to either support or oppose legislation, and in controlling the critical committees in both the House and Senate.

The various committees are arguably where the real power is found in Congress, yet they are little understood by most Americans. Basically, there are committees and subcommittees responsible for overseeing large areas of Congressional activities. Examples include the Ways and Means committee, the Budget committee, the Armed Services committee, and the Appropriations committee, although there are dozens more. These committees are so important because they control whether legislation in their area ever reaches the floor for a vote, the pace at which legislation is introduced, and the specific content of that legislation. It is in the committees that deals are struck and changes made – and most legislation that dies before passage does so in the committees, thus control of the key committees is of critical political importance.

Like these committees, the Congressional staff is part of the workings of the government that are rarely discussed and little understood by most citizens. Each Representative and Senator has numerous staffers who provide advice, control access to the elected official, interact with the public and the press, and engage directly in negotiations with other parties and other officials. In short, it is actually the staffers who conduct a great deal of the legislative work. Any elected official who wishes to be effective must have an effective staff, and must understand that he must also form relationships with other Congressional staffers. In effect, the members of Congressional staffs are the soldiers and lieutenants, carrying out the work for their generals – the actual elected officials. As in the military, it is these people who do much of the actual work, although they receive little credit.

The Congressional caucuses are similar in ways to the committees, but they are not formal bodies; instead, they are more informal organizations that are created to facilitate communication and learning between members in regards to very specific issues. For example, one of the best known caucuses is the Congressional Black Caucus, which was created to allow Black Congressman to hold meetings to discuss issues directly related to Black Americans – regardless of the actual party membership of the Congressman. Other caucuses include the Human Rights Caucus, the Health Care Caucus, and the Renewable Energy Caucus. All of these are designed as organizations to allow elected officials with shared concerns on specific issues to address those issues, formulate plans of action, and share new information – all of which may later be used in relevant legislation.

Congressional rules are critical because they control the actual manner in which the Congress functions. Despite the political maneuvers of the parties, the efforts of caucuses, and the decisions of committees, all Congressional action must conform to certain rules. One of the sets of rules that have been discussed in the media recently has been the rules governing filibusters in the Senate. Because these rules can have a dramatic impact on political power, it is significant who controls committees that may be able to change Congressional rules.

Finally, the interactions between the President and the Congress have a great deal to do with the way in which Congress functions. For example, while the President cannot legislate – his office is tasked with executive rather than legislative powers – he can and does introduce legislation that is then voted on by Congress. The most common example of this involves the national budget, which is traditionally presented to the Congress by the President for approval – although the Congress can certainly modify or reject that budget. Perhaps the most important aspect of this relationship is the ability of the President to use his political power to sway votes and encourage or discourage passage of specific legislation.

With this basic level of understanding of legislative fundamentals, specific legislative processes can be highlighted in the way in which Congress has tackled the gay marriage debate. An initial superficial analysis might suggest that the issue of whether homosexual Americans should have full equality in marital rights is of less political and cultural significance than some other issues; after all, marriage and sexuality are fundamentally private spheres rather than public institutions. However, a closer look reveals that the gay marriage issue may, in fact, be the most critical domestic political issue in 21^st century America (Greene, 2005). This is true not necessarily because of the issue itself but because of what it reveals about our society – both culturally and politically. First, from a purely cultural perspective, the gay marriage issue reveals an unprecedented level of conflict between progressives and traditionalists (Murdoch & Price, 2001, p. 14). The United States population is sharply divided between the liberal “blue state” and conservative “red state” ideologies – perhaps more sharply on a socio-cultural level than at any time since the Civil War era – and the gay marriage debate highlights this cultural divide better than almost any other issue. The state of Vermont provides a self-evident example: although Vermont is home to former Governor and current Democratic National Committee Chairman Howard Dean, as well as to the nation’s first gay civil-union laws, and is generally considered a progressively liberal state, even in Vermont there is a sharp cultural gap on the issue of gay marriage:

While Vermont is a blue state, it is not immune from the culture wars, and the battle over gay marriage exposed the fault lines between the “two Vermonts.” The first kind of Vermonter has deep roots in the state and with many exceptions, this Vermont tends to be conservative, traditional, and rooted in the values of rural America. The second kind of Vermonter probably is not born in the state and tends to be liberal, nontraditional, and rooted in the ethos of the city. (West, 2004, p. 112).

Vermont serves as an illustrative social and cultural model for the rest of the United States, where the gay marriage issue is even more divisive. Even as civil-union statutes are passed in an increasing number of states and anti-gay marriage legislation is increasingly challenged in the state and federal courts, a significant number of Americans continue to oppose gay marriage – an opposition that seems to be becoming more heated, and is divided sharply along partisan lines. According to a November 2003 poll “by Fox News Channel and Opinion Dynamics, homosexual marriage is opposed by 66 percent of Americans and supported by 25 percent. Respondents also opposed civil unions by a margin of 48 percent to 41 percent. The gap was narrower in a recent Pew Research Center poll, which showed Americans opposing homosexual marriage by a margin of 53 percent to 38 percent. Only 24 percent of Republicans favored the practice, compared with 45 percent of Democrats” (“Gay Marriage,” 2003, p. A1). These numbers reveal not only the cultural and social importance of the issue, but also hint at its true relevance – as a purely political issue. Liberals use 14^th Amendment constitutional arguments to frame the debate as one of civil liberties and equal protection; conversely, conservatives have framed the debate as one of protecting traditional values and the family structure (Shell, 2004). As a result it has become a singularly effective political “wedge issue,” a single issue which many commentators believe may have led to a victory for President Bush in 2004, and which is culminating in debate over Congressional passage of the Federal Marriage Amendment.

Legislative and judicial efforts to specifically define and restrict marriage are not new concepts from a historical perspective. Prior to significant Supreme Court precedents like Griswold v. Connecticut in 1965 and Roe v. Wade in 1973, there was essentially no constitutionally guaranteed right to privacy – even over matters like sexual reproduction and marriage (Wardle et al., 2003, p. 29). Even after those and following high Court holding established a constitutional “right to privacy,” cases like the 1984 Bowers v. Hardwick specifically failed to extend those rights to homosexuals, and effectively validated “anti-sodomy” laws (Ireland, 2003, p. 18).

However, when Hardwick was struck down in 2003 by the Supreme Court holding in Lawrence v. Texas, the gay marriage debate became more prominent – and more politically significant. Hawaii and Vermont have legalized some form of gay marriage or legal civil unions and several local jurisdictions have followed suit – raising important issues of states’ rights and federalism; at the same time, several foreign countries, including Spain, the Netherlands, and South Africa, have legalized gay marriage (Greene, 2005, p. 1990). Conservative opponents had attempted to block gay marriage initiatives previously, most notably through the Defense of Marriage Act (DMA), passed in 1996 by a Republican Congress and signed into law by President Clinton (Wardle et al., 2003, p. 4). The DMA was specifically intended to federally supersede state future potential efforts at the state and local levels to recognize gay marriage; several states have actually utilized the DMA Act in their own efforts to prevent acceptance of gay marriage laws originating in states like Hawaii and Vermont:

There is currently a national debate over the right of lesbian and gay couples to enter into state-sanctioned marriage. Much of this debate stems from Vermont’s recent legislation permitting same-sex civil unions. Lawsuits in Hawaii and Alaska attacking the constitutionality of prohibitions on same-sex marriage have also fueled the debate. In addition, many states are currently considering, and some have adopted, legislation attempting to prevent recognition of same-sex marriages performed in sister states. Most notably, in 1996, Congress enacted the Defense of Marriage Act (DOMA), which could give states that enact such legislation further ammunition in their efforts to deny recognition to same-sex marriages that may be legally sanctioned in sister states. (Greene, 2005, p. 1989).

Unfortunately for social conservatives, recent liberal initiatives have directly undermined the effects of the DMA. Relying on constitutional grounds, liberals and progressives have worked to weaken the effects of Clinton-era anti-gay marriage actions. “When proponents of gay marriage say that existing law is “discriminatory,” and a violation of the Fourteenth Amendment, their underlying claim is that the state has no legitimate reason for distinguishing between long-term gay relationships and conventional marriages” (Ponnoru, 2006, p. 38). As the courts have seemed increasingly sympathetic to this viewpoint, despite a popular backlash against gay marriage proponents, conservatives have been left with one primary option to prevent gay marriage from becoming a reality: an amendment to the U.S. constitution.

It is precisely for that reason that momentum has been building in attempts to pass a Federal Marriage Amendment (FMA), a constitutional amendment that would bar state and local governments from recognizing gay marriage; this would, in effect, sidestep the 14^th Amendment arguments and settle the issue as a matter of law in favor of conservative anti-gay marriage positions. The Bush Administration in general has come out strongly in favor of the proposed FMA Act, as Vice-President Cheney – who is actually opposed to the act – noted in 2004:

But Cheney added that Bush “makes basic policy for the administration” and that the president had endorsed the proposed Federal Marriage Amendment in February because he bellowed some state and federal courts “were making the judgment or the decision [on legalizing same-sex marriage] for the entire country.” (“Cheney,” 2004, p. 14).

President Bush’s support of the FMA Act is certainly understandable for two reasons: first, it conforms to his personal and widely publicized views on the issue, and second, because recent pro-gay marriage activities have led to a significant backlash among the American populace – turning gay marriage into a political winner for Republicans. During the 2004 general elections, fully 12 states passed measures to ban gay marriage, usually by significant margins; even in liberal Oregon, an anti-gay marriage measure passed with a 57% majority of the vote. Nineteen states have now adopted such measures (“Gay Marriage,” 2005, p. A1). The backlash has been so significant that some commentators actually give it credit – or blame – for President Bush’s 2004 re-election victory (Greene, 2005). While that is certainly open to debate, it is unquestionable that President Bush and the Republican Party have effectively seized on the issue as a political tool – and have rushed to support the proposed FMA Act:

Just two days after Gallup released its poll showing the backlash, Bush unexpectedly used a Rose Garden press conference to announce that he’d assigned lawyers to come up with a plan to stop gay marriage. Bush and the Republicans had been under enormous pressure from the Christian right and social conservatives–including National Review and The Weekly Standard–to support a Federal Marriage Amendment to the Constitution, which would ban recognition of any form of marriage between two persons of the same gender. (Ireland, 2003, p. 18).

The Federal Marriage Amendment has had a turbulent legislative history but continues to remain viable because of a significant number of powerful lobbying groups working to advocate for the legislation. Originally drafted by well-known conservative judge Robert Bork and Alliance for Marriage founder Matt Daniels, the FMA Act was initially introduced in the House of Representatives in 2002 by Colorado Congresswoman Marilyn Musgrave; after early versions failed in the U.S. Senate, a newer version intended to address Congressional objections, was introduced again in 2004 (Shell, 2004). The new bill, introduced into both the House and Senate as H.J. Res. 106 (108th Congress 2004) and S.J. Res. 40 (108th Congress 2004) – with Colorado Republican Wayne Allard sponsoring the Senate version – reads in full:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman. (Greene, 2005).

The Senate version was introduced in January 2005 with 21 co-sponsors signing on; since that time the legislation has remained under consideration by the Senate Subcommittee on the Constitution. In November 2005, the subcommittee voted to send the legislation to the full committee, and is now almost certain to re-emerge as an important political issue during the 2006 mid-term elections (McEwan, 2006).

There is a significant amount of influence being wielded by lobbying groups and Political Action Committees (PACs) on both sides of the issue. On the liberal side, groups like Democracy for America, Progressive Democrats for America, MoveOn PAC, and the Gay and Lesbian Victory Fund have lobbied heavily to defeat any passage of the FMA Act; on the other side of the issue, numerous groups – many of them religiously-oriented – have worked to push the legislation, with these groups and PACs including most notably the Save Traditional Marriage PAC, a conservative organization created solely to support the FMA Act (Wardle et al., 2003). All of these groups have publicly acknowledged making significant financial contributions to both their respective parties and to key legislators who may be in a position to block or facilitate bringing the FMA Act to a full vote in the House and Senate.

In the final analysis, the ultimate resolution of the gay marriage issue and the status of the FMA Act mirrors a similar debate over abortion legislation; specifically, at issue currently is whether the debate will be solved by the people through their legislators or by the high courts. Even with conservative Bush appointees on the U.S. Supreme Court, the 14^th Amendment arguments in support of gay marriage would appear likely to ultimately defeat most state-sponsored anti-gay marriage legislation; thus, for conservative proponents of the FMA Act, it would seem that a constitutional amendment is indeed the only effective route likely to ultimately serve to ban gay marriage from becoming a political and social reality. Unfortunately for liberals, the current public mood and electoral backlash on the issue suggests that conservatives may have a real chance of – at the very least – getting the FMA to the states for ratification. It is therefore up to progressives and liberals seeking to advance equality across sexual orientation lines to defeat the FMA through direct education of the public in the many basic issues of constitutional equality and fairness; education is the key to defeating knee-jerk conservative social engineering on this issue.

References Cited

Cheney Differs with Bush on Amendment to Ban Gay Marriages. (2004, September 21). The Christian Century, 121, 14.

Gay Marriage Ban Stands. (2005, November 5). The Register-Guard (Eugene, OR), p. A1.

Gay ‘Marriage’ Looms as ‘Wedge’; President Bush Is Clear in Disapproval, but Democrats Face a Delicate Balancing Act. (2003, November 30). The Washington Times, p. A01.

Greene, J. (2005). Divorcing Marriage from Procreation. Yale Law Journal, 114(8), 1989-1995.

Ireland, D. (2003, October 20). Republicans Relaunch the Antigay Culture Wars: The GOP Embrace of Homophobia Is More Than Simply a Sop to the Far Right-Given the Backlash against Gay Marriage, It’s Shrewd Political Strategy. The Nation, 277, 18.

Lisotta, C. (March 2, 2004). The Domino Effect: White House Opposition to Gay Marriage in Massachusetts May Have Set off a Cascade of Antigay State Laws. The Advocate, 13.

McEwan, M. (2006, January 27). GOP to force federal marriage amendment vote in 2006. Available online at: http://rawstory.com/news/2005/Republicans_will_ try_to_bring_Federal_0127.html (24 February 2006).

Murdoch, J., & Price, D. (2001). Courting Justice: Gay Men and Lesbians V. the Supreme Court. New York: Basic Books.

Ponnuru, R. (2005, June 6). Option Four: A Compromise on Gay Marriage. National Review, 57, 38.

Rotello, G., & Graff, E. (1996, June 24). To Have and to Hold: The Case for Gay Marriage. The Nation, 262, 11-13.

Shell, S. M. (2004, Summer). The Liberal Case against Gay Marriage. Public Interest 3-9.

Wardle, L. D., Strasser, M., Duncan, W. C., & Coolidge, D. O. (Eds.). (2003). Marriage and Same-Sex Unions : A Debate. Westport, CT: Praeger.

West, I. (2004). Legalizing Gay Marriage. Argumentation and Advocacy, 41(2), 112-115.