Building a bigger House

Congress should be expanded — but through the political process, not the court system

November 15, 2009|By Martina E. Vandenberg and Nicholas O. Stephanopoulos

Will a recent lawsuit result in Congress' biggest upheaval in almost 100 years? Probably not, but that's the hope of the parties who brought the case. They think that the House of Representatives is unconstitutional in its current form and that the only solution is to drastically increase its size.

This effort, while quixotic, is not thoroughly misguided. The House should, in fact be larger - but a lawsuit is the wrong way to reach that goal.

The plaintiffs, citizens of Delaware, Mississippi, Montana, South Dakota, and Utah, argue that the House's 435 seats are not fairly distributed among the states. Their own home states, in particular, have much larger House districts than the national average of 650,000 people. Montana's one district, for example, contains more than 900,000 people, compared with just 500,000 people in Wyoming's.

Even more curious than the plaintiffs' suit is their suggested remedy. They hope the court will order the House to be increased to either 932 or 1,761 representatives. Either size, in their view, would "offer a significant improvement over the current system ... by reducing the level of over and under-representation."

The plaintiffs' case is pretty weak. While no court has rejected their exact argument, the Supreme Court came close in a pair of 1990s apportionment decisions. In a 1992 case, the court observed that "the need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible to have the same size district in any pair of States, let alone in all 50." In a 1996 case, the court similarly noted that "the Constitution itself ... make[s] it impossible to achieve population equality among interstate districts."

The plaintiffs' own suggested remedy confirms that interstate differences in district size cannot be eliminated. Even if the House's membership were quadrupled, districts would still deviate from the ideal size by about 10 percent total. And even if all House districts could somehow be equalized at the start of each Census cycle, their sizes would still be different at the end, thanks to varying rates of population change. In the 1990s, for example, both Nevada's 2nd and Maryland's 7th congressional districts began the decade at 600,000 people, but they ended it, respectively, at more than 1 million and less than 550,000.

While the plaintiffs are unlikely to prevail in court, they are not crazy to be concerned about the size of the House. New seats were added to the House every decade from 1790 (when there were just 69 members) until 1910. But after Congress deadlocked for political reasons in 1920 and 1929, the House's size froze at 435 members and has remained frozen even as the U.S. population has more than tripled. According to University of Connecticut political scientist Jeffrey Ladewig, the House is now smaller, relative to national population, than any other Western country's legislature. A more appropriate size would be about 670 representatives.

Political scientists predict that a larger House would produce representatives who are more accessible to (and better liked by) their constituents. The smaller the district, the more contact politicians can have with the people. More House seats would also mean more representation for minorities of all sorts. Racial and ethnic groups, women and candidates with unusual views would find it easier to win in districts that are smaller and more varied. And a House with 600-700 members would still be manageable. The British House of Commons, for instance, has 646 seats and functions at least as well as Congress.

A larger House, lastly, would cause the Electoral College to better approximate the popular vote in presidential elections. States are assigned as many electors as they have representatives and senators combined. So if the House were substantially bigger, the impact of each state's two senators would be (properly!) overwhelmed by all the new representatives. In 2000, Al Gore would have squeaked out a narrow Electoral College victory had the House consisted of 630 representatives (the number then appropriate).

The plaintiffs, then, would be well advised to abandon their lawsuit and to switch their efforts to the political arena. No court is likely to give them the relief they seek. But Congress has repeatedly increased the House's membership in the past, and there is no reason why it cannot do so again. Grass-roots organizing and backroom lobbying may not be as satisfying as filing suit - but they are the only way this battle can be won.

Martina E. Vandenberg (mvanden berg@jenner.com) is a partner in the Washington, D.C. office of Jenner & Block LLP and a member of the firm's election law and redistricting practice. Nicholas O. Stephanopoulos ( nstephanopoulos@jenner.com) is an associate at the firm specializing in election law.

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