The Senate Judiciary Committee will hear more today on the reauthorization of the Voting Rights Act.  Or, it might be better to say that the Senate will conduct hearings, a very different undertaking than one in which anything is heard.  For contrary to the hopes of some, the deal seems to be done:  the terms on which reauthorization is possible have been settled.  The agreement has received overwhelming support so far, as indicated by the 33-1 vote in the House Judiciary Committee.  Now the Senate is establishing a hearing record, but to what end, if it is not to entertain proposals for a change in the material terms of the deal?

      The affair is, of course, largely a formal one.  To the degree that it is not formal—a kind of legislative courtesy—it is the occasion of depositing into the record material for later argument, but not for practical legislative use.  There are Committee Republicans who welcome critical assessments of the bill’s vulnerability to constitutional attack and they would like to have these judgments, all the more potent for being expressed by VRA supporters, well documented. 

     Rick Hasen, among others, suggests that Committee minds, Senator Specter’s in particular, might be more open than supposed to these arguments.  Anything is possible (not really, though we would like to think it), but it is hard to see what would motivate Senator Specter or other Republicans to act—or to attempt to act—on these concerns, even if tempted to do so.  Elected officials do sometimes charge into battle without regard to personal political safety, the wider political repercussions, or the odds of success.  And yet this is not routine behavior, and there is nothing in the issue as it is now presented that seems likely to encourage the Chairman or any other Republican leader to abandon the comforts of the routine.  Consider:

(1)  The press of other issues of high visibility and considerably greater divisiveness, ones which, quite unlike the VRA renewal, are not progressing on bi-partisan agreement.  The principle here:  Members like to settle the issues that they can.

(2)  The awkwardness, to say the least, of a senior Republican leader challenging the consensus validated by, among other supporters of the agreement, the civil rights community.  The principle here:  Republicans believe that this deal will help a little, if only a little, with their bad press on civil rights.

(3)  The difficulties presented by a break with the Republican Party establishment that has, for strategic reasons, endorsed this deal.  The principle here:  incumbents and parties don’t act against self-interest in political matters, and this is even more improbable when, as here, the self-interest can be presented as an act of statesmanship and commitment to high principle (voting and civil rights)

(4)  Congress rarely troubles excessively with constitutional issues.  By nature, these questions are abstruse and their merits energetically contested, and their audience in the public at large is limited.  Unlike some such issues—say, some free speech or privacy issues—the constitutional argument here translates awkwardly into the public sphere. 

How many African-American or progressive voters are likely to accept that a deal, supported by African-American elected officials and the Democratic leadership, was reopened—read, run into the ditch—by white Republican Senators fretful about “constitutional issues”?  The deal-breakers can explain it as they will, but discussion of “congruence and proportionality” won’t help much in establishing their good faith.  The principle here:  taking risks without a communicable message is poor political practice, highly injurious to the risk-taker. 

      Now critics of the deal put some hope in “evidence,” and they have offered some, developed previously by the Lawyers Committee for Civil Rights and the University of Michigan.  This evidence is disputed, however—evaluated very differently, even by witnesses testifying, though from different perspectives, in favor of renewal.  This sort of evidence does not move Congressional decision on this kind of legislation.  Congress generally picks the evidence most closely fitted to the probable outcome—an outcome determined by different pressures and incentives.  

     This is what distinguishes this kind of hearing from, say, a Congressional investigation, in the course of which evidence developed may well matter.  This is because investigative evidence is developed by the Congress itself, prior to the emergence of legislative uses.  In fact, in a case like the present one, the very disagreements over evidence presented and argued by various parties merely point up the difficulties of the issue and enhance the appeal of a deal. 

      The Congress is taking up this issue as it must, on a schedule determined by statute, and it can only act in the given circumstances which involve considerable uncertainty or disagreement about the state of voting rights in its various factual, legal and political dimensions.  This favors, heavily, the deal moving through the House and now before the Senate.  The hearings for this reason are more about the extended rather than the immediate future, more about decisions to come than about the one Congress will now have to make.  This does not diminish their value, for as Heather Gerken has rightly stated:  “The one thing that the academics and practitioners who support the Act ought to agree on is that we shouldn't stop here.”  

Bob Bauer