Monday's court ruling against the use of statistical sampling in the Census is scarcely a run-of-the-mill judicial decision. Rather, it's another rejection of the Clinton Administration's bending of the law and, perhaps more importantly, a rebuff to the latest Clinton tactical political brainstorm.
The Clinton Commerce Department has insisted it already has legal power to institute statistical sampling as the centerpiece of the year 2000 Census. The House of Representatives sued, at the behest of Speaker Gingrich, contending Commerce did not have such power without legislation Congress had no intention of passing. To speed the decision, the suit was heard by a special three-judge panel of two district judges and one from the D.C. Court of Appeals, two appointed by Ronald Reagan and one appointed by President Clinton. They came down 3-0 against sampling.
Judge Royce Lamberth's decision told Commerce to read the law. Congress had indeed authorized Census to use sampling, but the same law prohibits its use for the vital purpose of apportioning House seats. The whole thrust of the sampling argument, of course, has been that the traditional head count misses some people who should be statistically reinserted for the purposes of apportionment. No one cares about using sampling for scholarly questions, or for that matter about extra efforts to locate hard-to-reach people. But the statutory exception conforms with the Constitution, which specifies reapportionment based on an "actual enumeration" of all Americans, meaning, as the dictionary defines it "to count off or name one by one."
As we've repeatedly seen in the past 200 years, the Founding Fathers were not fools. Yes, statistical sampling has been scientifically developed since their time, and we haven't the least doubt that in scientific hands it's a valid tool. But what hasn't changed since the Constitution was written is human nature, particularly that of political humans. The reason for an actual enumeration is not that sampling is scientifically flawed, but that politicians cheat.
In designing statistical sampling, the Census Bureau would have to make a whole series of decisions about what kind of districts to sample, and how much to adjust different results. Though there may be some defensible scientific basis for doing this, the decisions would be subject to political pressure every step of the way. Who would trust Census bureaucrats to stand up to this Administration if it tried to twist the results?
In the last Presidential election, the Immigration and Naturalization Agency let itself be used when a record 1.1 million people were made U.S. citizens in a clear attempt to add to the ranks of Democratic constituencies. Post-election it was learned that 180,000 of these people had become citizens without formal FBI approval. Of those 180,000, the FBI had criminal records for 71,000, including 16,400 who had been arrested on felony charges.
Congressional probes have documented how Vice President Gore's office pressured the INS to take "drastic measures" to speed up its "Citizenship USA" program. A memo indicates that White House deputy chief of staff Harold Ickes was briefed on "new-citizen voter registration" at a September 1995 meeting held only one month after "Citizenship USA" was created. "[T]he pace of naturalization will limit the number of new voters," the memo warned. A later memo lamented that INS lethargy would fail to "produce a million new citizens before election day."
After this episode, the Administration wants Congress to drop the Constitutional "enumeration" for something more "modern," and more flexible. At the same time Attorney General Reno has been flouting the law by refusing to appoint an Independent Counsel for the President and Vice President on the subject of campaign contributions. For that matter, the same Commerce Department that insists it can conduct sampling fairly brokered seats on foreign trade missions in the first Clinton term as a crude campaign fund-raising device. At least we still have a judiciary willing to blow the whistle.
Not only that, but the Administration has made the sampling issue a centerpiece of its "close the government" tactic. As recently as August 3, the President vowed to veto any "bare bones" continuing resolution to keep the government funding at current levels pending resolution of policy disputes in the budget. In 1996, he pulled off a public relations coup by vetoing a bill that would have kept the government open and then blaming the Republicans for having closed it. The Republicans have still not recovered, one reason why the President hopes he might pull the same trick again.
In particular, President Clinton threatens to veto appropriations for Justice, State and Commerce if they include limits on the use of sampling. How convenient to veto Justice, including money for Ken Starr's investigation. The court ruling leaves this strategy about as phony as the sincerity-dripping denials that the President had a sexual affair with Monica Lewinsky. We await smoke signals from the White House telling us what the next veto excuse will be.
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