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Supreme Court Watch: The Census and the Long Distance Market

January 25, 1999 at 12:00 AM EDT


PHIL PONCE: They dealt with two of the most closely watched issues of the term: How to go about counting the number of Americans, and letting long distance companies enter the local phone market to give consumers more choices for their local service.

Here to explain the decisions is NewsHour regular Jan Crawford Greenburg, legal affairs reporter for the “Chicago Tribune.” Jan, let’s start with the census case. What is it that the Census Bureau wanted to do?

JAN CRAWFORD GREENBURG: Well, they had proposed for the 2000 census using scientific methods of statistical sampling to, as they said, get a better count of the nation’s citizens.

PHIL PONCE: And why is it they wanted to engage in statistical sampling?

JAN CRAWFORD GREENBURG: Well, the 1990 census was considered an expensive failure by many people. It cost $2.6 billion and it resulted in an undercount of about four million people.

PHIL PONCE: That four million people undercount, that’s what the Census Bureau was arguing?

JAN CRAWFORD GREENBURG: Right. And so to remedy that, congress ordered the Bureau to come up with a better way, and it proposed using this scientific, statistical sampling to get a better count of the nation’s citizens.

PHIL PONCE: Now, it wasn’t going to depend on sampling for the whole thing. How does it work normally with the census?

JAN CRAWFORD GREENBURG: It would have worked similar in some ways to the 1990 census. The Census Bureau would have mailed out forms, just as they have done traditionally. And it expected about a two-thirds response rate, as it has gotten in the past.

Then it would have sent census takers out into the field to get a better idea of who was out there. And when it reached 90 percent, it would have estimated the remaining 10 percent. That’s how they proposed doing it. In the past, they had not made that leap. They hadn’t extrapolated that remaining 10 percent.

PHIL PONCE: And you talk about the four million people that the Census Bureau claims was undercounted, did the opponents of this plan agree that roughly four million people had been undercounted? I mean, was that accepted?

JAN CRAWFORD GREENBURG: There was some agreement, though the opponents pointed out that, you know, when you think about we live in a country of over 250 million, you know, that’s a not a whole lot. And we still have a pretty accurate way of counting our citizens.

They argue that statistical sampling was just a terrible idea because we’re creating these mythical, virtual people. And we’re not actually counting an actual enumeration.

PHIL PONCE: Who were these so-called mythical people who were unaccounted; what was the profile of that population?

JAN CRAWFORD GREENBURG: Traditionally minorities, the rural and urban poor are undercounted to a larger extent than other people. And those are traditional democratic constituencies. So that introduces an element of politics into this, which means that Democrats had favored statistical sampling because they thought more minorities and more of the rural and urban poor will be factored into the number of Americans.

PHIL PONCE: And it was largely Republicans who were objecting to this.


PHIL PONCE: And the Supreme Court held —

JAN CRAWFORD GREENBURG: The Supreme Court said that statistical sampling cannot be used for the purposes of reapportionment, for determining how many seats each state has in the House of Representatives.

PHIL PONCE: Does this mean that for purposes of reapportionment, what, the Census Bureau is going to have to go by a head-by-head, person-to-person count?

JAN CRAWFORD GREENBURG: Well, a traditional count. And certainly the Census Bureau has suggested other ways to improve on the 1990 census. It’s going to advertise, for example, more aggressively than it has in the past. It’s updated, it’s spent billions of dollars updating its mailing list, which, as I explained, was the first wave of counting our people. So they say that they already are implementing some changes.

PHIL PONCE: So what happens, though, if a census counter goes to an apartment building, the counter knows there are people in there, but he or she can’t get in there for some reason, what, those folks are not counted?

JAN CRAWFORD GREENBURG: Not for purposes of — at the very end of the day, once they’ve done all their sending out the – you know – sending out the aggressive — doing the aggressive follow-up, they won’t with able to. And that came out at the oral arguments.

The justices seemed concerned about that. One of the justices, in fact, even said, you know, even if they see the lights on, can’t they, you know, extrapolate or estimate, and the opponents said, no, they can’t. And today the Supreme Court said for purposes of reapportionment, we can’t do this statistical sampling.

PHIL PONCE: The Secretary of Commerce, William Daley, the Census Bureau’s part of the Commerce Department –


PHIL PONCE: — their reaction today.

JAN CRAWFORD GREENBURG: Well, he acknowledged that they were disappointed with the ruling, but he interestingly – he said that the Commerce Department wasn’t ruling out using some form of sampling for other purposes.

Remember that the census is used not only for reapportionment but also for redistricting at several levels and for allocating hundreds of billions of dollars of federal money every year. So he left open the possibility that there might be – the Census Bureau might still try to get in some sampling and maybe come up with two sets of numbers.

Now, that’s going to be a very heated battle, and several of the people I spoke with today, Republicans, said that they would fight very hard to block that. They say two numbers, that’s ridiculous because Americans would have no confidence in the numbers. What is our population? It would just be a terrible, terrible idea.

PHIL PONCE: So just to make sure I understand, there would be one set of numbers under this scenario, one set of numbers for purposes of reapportionment, how many seats in congress a state might be entitled to and what — another set of numbers that includes statistical sampling for purposes of redistricting and how much in federal aid —


PHIL PONCE: — a jurisdiction might get?

JAN CRAWFORD GREENBURG: That’s just a possibility that was raised today. Whether or not that’s going to come to pass, and certainly the Republicans said today that they would block that if they can. But, you know, we’ll see.

PHIL PONCE: What was the split on the court? How many justices voted on each side?

JAN CRAWFORD GREENBURG: Well, Justice O’Connor wrote the majority opinion, but the four more liberal justices said that they would have allowed some form of statistical sampling.

PHIL PONCE: And the second case of the day involved — it was a big telephone case. What was the issue there.

JAN CRAWFORD GREENBURG: Yes. Another big — today was big for money and power. And the Telecom case involved money and a lot of it. At issue was an interpretation of the 1996 Telecommunications Act, which was designed to open up phone markets, local phone markets to greater competition.

The F.C.C. had put fourth various rules to implement that law, including, among other things, its ability to set pricing formulas for what the long distance giants would have to pay to break into these local markets.

PHIL PONCE: Because it’s the long distance companies that want to get into the local markets —

JAN CRAWFORD GREENBURG: That’s right, that’s right.

PHIL PONCE: — to compete with the existing companies.

JAN CRAWFORD GREENBURG: Local companies like Bell South, Ameritech, those companies. PHIL PONCE: And the Supreme Court held that?

JAN CRAWFORD GREENBURG: Well, it was a very split decision because there was a lot of different rules that were issued, but primarily –

PHIL PONCE: It was a five/three split, something like that?

JAN CRAWFORD GREENBURG: Primarily, yes, on certain things, but primarily, but the court said that the F.C.C. did, in fact, have jurisdiction to implement certain pricing methods, and it reinforced that the F.C. C. rules were okay because they were reasonable. So it was in a large sense a victory for the F.C.C. And, in fact, one of the commissioners held it as a victory for consumers, but it was also a victory for the long distance companies trying to break into the local markets.

PHIL PONCE: And it’s important that the F.C.C. was given this power because that means that the F.C.C. can set the rules by which long distance companies can get into local competition, and, therefore, it doesn’t have to be a state by state, 50 states making up their minds, what, it’s smoother –


PHIL PONCE: And so things will happen quicker for consumers?

JAN CRAWFORD GREENBURG: That’s what the F.C.C. argues, and that’s why they said today’s ruling which gave the F.C.C. — or said the F.C.C. had authority to implement these rules, why they said that’s a big victory for competition because it will happen, as you said, more quickly.

PHIL PONCE: And the dollars and sense argument in favor of the local competition is what? I mean, what, the savings that people saw when competition came to long distance will be comparable to local phones is that what they’re saying?

JAN CRAWFORD GREENBURG: Sure. Right. When the market opened up in the long distance market, it would have been 15 years ago now, to competition, people say that we’ve seen a 70 percent savings in our long distance service since competition entered those markets. So, you know, this law could have a significant effect on what consumers pay for their service.

PHIL PONCE: And very quickly, any indication on the part of the sides as to how soon local competition might actually happen?

JAN CRAWFORD GREENBURG: No. I mean, it’s taken some time because there’s been litigation, and there could be more litigation in the future. The state commissions could go back and file more lawsuits and the local companies could, as well, on what these rules actually do say.

PHIL PONCE: Jan, thank you very much.