Should the Size of the U.S. House of Representatives Be Doubled, and Other Major Governmental Changes Be Made? A Set of Interesting Proposals From Political Scientist Larry Sabato

By VIKRAM DAVID AMAR

Thursday, Apr. 10, 2008

Constitutional lawyers and professors are not the only ones who write about improving our constitutional framework. And people who care about the Constitution (which should include all Americans) benefit by reading and considering the works of people from fields other than constitutional law, perhaps especially political science.

In today's column, I'll discuss some ideas of University of Virginia Political Scientist Larry J. Sabato developed in his recently published book, A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country. In particular, I'll focus on Sabato's proposal to more than double the size of the U.S. House of Representatives.

Professor Sabato's Ambitious Prescriptions and the Call for a Constitutional Convention

In A More Perfect Constitution, Sabato offers discrete proposals for rewriting our Constitution to make our electoral process and government more sensible and more equitable. (Professor Sabato actually offers 22, rather than 23, specific proposals regarding governmental processes, for his last proposal is that America convene a new constitutional convention to consider rewriting the document to incorporate some or all of his other substantive ideas.)

The vast majority of Sabato's suggestions deal with the mechanisms by which federal legislators and executive and judicial officers are selected and retained. Professor Sabato wants, among other things, to "grant[] the ten states with the greatest population two additional senators and the next fifteen states one additional senator each," "[m]andate nonpartisan redistricting for House elections," "[c]hange congressional terms by lengthening House terms to three years," "[e]xpand the size of the House to approximately 1,000 members," "establish generous term limits for representatives and senators," "[c]reate a Continuity of Government procedure" for the temporary appointment of House members in the event of catastrophe, and lengthen the president's term to six years, including a "fifth-year extension referendum - that is, an up-or-down confirmation election - which could result in an additional two years in office for the president."

He also wants to "eliminate lifetime tenure in favor of a single, nonrenewable term of fifteen years for all federal judges," impose a "mandatory retirement age for federal judges, including Supreme Court Justices," allow "non-natural born" persons to serve as President or Vice President so long as they have been U.S. citizens for twenty years, grant "more populated states additional electors (essentially in proportion either to their population or to their enhanced U.S. Senate representation)" in the Electoral College, and "reform campaign financing by permitting Congress to pass reasonable limitations of campaign spending by the wealthy."

Interestingly, while some of the changes Sabato promotes (such as giving larger states more representation in the Senate and imposing congressional term limits) would require fundamental constitutional change, many others would not, strictly speaking, require amending - let alone entirely rewriting - the Constitution.

For example, it is at least arguable that Sabato's desire to limit the terms of Supreme Court Justices, his plan to require nonpartisan redistricting, and his instinct to democratize the electoral college could all be accomplished in significant measure without tinkering with the Constitution, but rather through creative state and federal legislative innovation. (For one such innovation, readers may want to refer to a discussion of the National Popular Vote plan as a way of democratizing Presidential election.)

The Proposal for Increasing the Size of the House: Pro and Con

One particularly interesting proposal Sabato makes that would not require constitutional amendment is to increase the size of the U.S. House of Representatives. After the Constitution was ratified, the country had a population of about 3.9 million, and the first U.S. House had 65 members. That works out to around 60,000 persons represented by each House member. By the time of President Abraham Lincoln's election in 1860, the size of the House had been increased (by federal legislation) to 183 members, each of whom represented about 100,000 people. The size of the House reached its apex at 435 after the census conducted in 1910. At that time, each member represented about 213,000 people. After some minor fluctuation, the number of House members has been fixed by Congress in 1941 at its present 435. Yet today, each member of the House represents almost 700,000 people - nearly 10 times as many as under the very first Congress.

As Sabato points out, this trend is "staggering, and it precludes personal contact between a representative and a vast majority of his or her constituents." That seems true enough, but would personal contact be feasible even if we, as Sabato desires, essentially double the size of the House (to 1000) so that each member would represent around 300,000? That still seems too large a ratio to facilitate meaningful personal interaction.

Yet Sabato suggests that perceptions are perhaps as important as realities. And he speculates that the large size of each House district is "yet one more reason for the general alienation of many citizens from their federal government . . . [and] [s]urely . . .fosters the widespread belief that 'no one cares about us, no one is listening to me and my family.'"

As Sabato also points out, other industrialized democracies have lower ratios of persons represented to members of the national legislature; in Great Britain, each member of the 646-members of the House of Commons represents only about 91,000 people, and there are around 102,000 French persons for each member of the 577-member French National Assembly.

Smaller district sizes might also, Sabato suggests, generate more diversity in the legislative body: "More ethnic, social, racial and religious groups might well have majorities [or at least pluralities] in these new, smaller districts, and they could elect a House member to carry their banner in Congress."

There is another kind of diversity that might be furthered too. Presumably, the cost of running a congressional campaign would also decrease along with the size of the district, thereby opening the door to less wealthy persons to run and effectively compete.

There are, to be sure, many potential arguments against increasing the number of House members, including the possibility that 1000 is simply too unwieldy a size to manage. At the time of the founding, James Madison cautioned against too small or too large a legislative body: "Sixty or seventy men [in the legislature] may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed."

Partisan Possibilities Complicate Things

Finally, of course, many persons might object to increasing the size of the House because such a move might have partisan implications. Interestingly, Sabato says that reducing the size of Congressional districts is an idea championed by conservatives, rather than liberals. Sabato explains that conservatives, such as commentator George Will, who want to expand the size of the House believe that the influence and resources of most individual members would be accordingly diminished. And that may shift power to other places conservatives generally prefer, such as, perhaps, to the White House.

But backers of increasing the size of the House must also be aware of the implications such a move might have for the so-called electoral college, whose formula allocates to each state a number of electors equal to the number of House members and Senators from that state.

As I have mentioned in an earlier column, if Congress had increased the size of the House since 1941 to keep pace with population growth and maintain the same ratio that existed in that year, the House today would have 830 members. And the "new" seats would have been allocated to the states whose population would warrant them. And in that hypothetical scenario, Al Gore would have won the electoral college vote in 2000 by a significant margin of 471 to 463 (the overall electoral college would have 934 votes - 830 to reflect the size of the House, 100 to reflect the size of the Senate, and 4 to reflect the size of DC.)

If the House were increased even more, to the 1000 Sabato wants, the balance might tip back in favor of Red states and the Republican candidate. So increasing the size of the House can have, at this moment in history at least, knowable implications for the partisan battle for the White House.

Surely that aspect makes any reform efforts more complex and unlikely, as long as the electoral college persists in its current structure. (To his credit, however, Professor Sabato wants to democratize the electoral college at the same time he wants to tinker with the House.)


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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