Making The Problem Bigger

Congress is a problem, but is it also too small?

“If you can’t solve a problem,” Donald Rumsfeld once said, “make it bigger.”  He was actually echoing Dwight Eisenhower.

Congress is a problem, and it’s one that we haven’t been able to solve via elections.  No matter which party is in power, it’s overly influenced by special interests, insufficiently devoted to the interests of the people, and sufficiently ossified that Nancy Pelosi counted as vital, energetic leadership.

So maybe we should make it bigger.

That’s what Danielle Allen argued recently:

As originally conceived, the House was supposed to grow with every decennial census. James Madison even included in the Bill of Rights an amendment laying out a formula forcing the House to grow from 65 to 200 members, then allowing it to expand beyond that. (His proposal actually stands as an open-ended amendment still available for state ratification, but the math it uses wouldn’t work for the country’s 21st-century scale.)

George Washington spoke just once at the Constitutional Convention — and on its final day — to endorse an amendment lowering the ratio of constituents to members to 30,000. The expectation was that good, responsive representation required allowing representatives to meaningfully know their constituents, constituents to know and reach their representatives, and Congress to get its business done.

Today, House members represent roughly 762,000 people each. That number is on track to reach 1 million by mid-century.

The number has gotten so high because of the 1929 Permanent Apportionment Act [which] has as a de facto matter capped the size of the House. The bill set the decennial reapportionment of the House on autopilot. It assigned the Census Bureau the job of reporting a new 435-seat apportionment plan for the House to the president following each decennial census. The president in turn simply reports the new apportionment to Congress. Congress can change this number if it wants to, but it has not wanted to for nearly a century now.

As a result, we are the only Organization for Economic Co-operation and Development democracy that hasn’t continuously adjusted the size of its legislative assembly over the past century. It also gives us the highest representation ratio of any OECD country by a long measure. Both the German Bundestag and the British Parliament are larger than our House of Representatives, even though their populations are roughly one-quarter or one-fifth of ours.

Why, exactly, was the House supposed to grow?

The Federalist Papers, a set of essays written to advocate for the new Constitution, explain its features via a set of key design principles: “energy,” “republican safety,” “due dependence on the people” and a need to fuse the principle of popular sovereignty with a union of states. A growing House of Representatives was meant to advance all these principles. . . .

Why this one renovation above all others? Four reasons:

For starters, with today’s high ratio of lawmakers to residents, representatives are too removed from their constituents. Constituent services are strained. Smaller districts would mean better responsiveness, which would align with the principle of popular sovereignty.

Relatedly, Congress has a much larger budget to track and manage, and many more agencies to review, than it did a century ago. More House members would make for more effective legislative oversight of the executive branch. That aligns with the principle of republican safety.

Third, the smaller the district, the less expensive the campaign, and the less politicians will be dependent on donors, instead of the people, as the principle of due dependence requires.

Fourth, a bigger House with smaller districts would enhance equal protection and inclusivity. More seats would mean more shots; smaller districts would give candidates from minority groups and nontraditional backgrounds a more feasible path to electoral victory.

I think she’s onto something.  It should be much easier to be elected to Congress – nowadays you basically have to wait for someone to die or retire – and if the larger House makes it more responsive to the people, it also means more people to do the work of Congress. 

As Larry Sabato notes, the Framers wanted a bigger Congress to match a bigger population:

The Founders wanted House members to be closely bound to their constituencies. Bowing to George Washington’s objection that 40,000 constituents per member was insufficiently representative, the original 65 members represented 30,000 citizens each. It is easy to imagine Washington’s horror if he had known the average district in 2008 would contain close to 700,000 people. No wonder citizens agree in most polls that “no one is listening to me and my family”; they likely have never met their member of Congress. To change how politics is played, we must rewrite some basic rules–and more than double the size of the House of Representatives.

A larger, more representative House is not without precedent. European democracies almost across the board have more legislative members and better representation ratios. The average British MP in the 646-member House of Commons represents 91,000 people, and France’s 577-member assembly boasts a 1-to-102,000 legislator-to-constituent ratio.

A 1500-member House might be a good compromise, but I’m happy with the idea of it going bigger.  (I’d honestly be okay with 10,000 representatives).  Congress has shrunk not only in relation to the population, but also, even more so, in relation to the size of the federal government, which has vastly expanded since the House’s size was fixed in 1929.  Holding Congress’s size down not only hasn’t kept government small, it may even have helped make it bigger and more intrusive, and certainly less supervised.

Right now members are too busy to do their actual jobs.  They’re constantly raising money (smaller districts would require less, and yield fewer donations from interest groups because they wouldn’t be worth as much).  They’re often double-scheduled with committee hearings and important meetings, and they wind up leaving the vast majority of Congress’s work to unelected staffers.  One justification for the transfer of power to bureaucracies is that Congress is too busy already.  A bigger Congress would help with that.

A bigger Congress should have less in the way of staff, per-capita.  Members should do more of the work. 

As Sabato notes, a bigger Congress would be harder to lobby.  With representatives measuring in the thousands instead of the hundreds, there would be more targets.  The return for lobbying any particular one would be small.  And members representing smaller districts would presumably hew closer to the wishes of their constituents, making them harder to lobby toward positions their constituents don’t share.

And a Congress with thousands of members would have less mystique, which I think is also good.  Government shouldn’t have a lot of mystique, since it’s a fundamentally shady operation that should be viewed with skepticism by the citizenry at all times.

Not everyone agrees with Allen’s idea.  Lawprof Steven Lubet argues that a bigger Congress wouldn’t make Congress more efficient, which I’m untroubled by,  and his fears that trans activists and other apostles of wokery wouldn’t get enough attention don’t persuade me that the approach is necessarily flawed.

But maybe it’s a bad idea.  Given Mark Twain’s famous statement that there is no native American criminal class, except Congress, maybe we don’t want to enlarge that class.  More members of Congress, more criminals?

Making Congress “more efficient” might actually be a bad idea, depending on how you measure efficiency.  Putting out more laws would be greater “efficiency” to some, but since I see the role of Congress as making it harder for bills to pass – the “I’m just a bill” Schoolhouse Rock episode illustrates how that works --greater efficiency might involve far more scrutiny of what the government does.  More members of Congress means more people to actually read bills.  More members of Congress means more people to oversee the unelected bureaucracy.  More members of Congress means more representatives to act as ombudsmen for citizens having trouble getting the government to act as it should.  All of this seems more efficient in some important ways.

Anyway, I think that most people would agree that Congress is broken, and that at least part of the problem is that it’s too distant from the people.  Making the House bigger might help. 

And what about the Senate?  The Senate is there to represent states, not people.  Post-Seventeenth Amendment, it’s elected by the people of each state, rather than the legislature, but nonetheless it’s a body that is fundamentally meant to represent the interests of the states, not of the people as such.  (A small, but growing, cadre thinks the Seventeenth Amendment was a mistake and should be repealed.  To paraphrase Chief Justice Marshall, there is great force to this argument, and I am not satisfied that it has been refuted, but that’s a topic for another essay.)  But given their role, more Senators wouldn’t really have a desirable impact.  (One might argue that the states themselves should be smaller, but that’s a different, and probably impossible, project, and one which the Constitution more-or-less forbids.)

The Executive Branch has gotten bigger, vastly so.  If it’s to change in size, it should be in the other direction.

The judiciary should probably get bigger.  In particular, the Supreme Court should be larger.  Right now, the untimely death – or even the timely death – of a justice or two could set the nation on its ear.  When the nation can be thrown for a loop by the death of an 80-year-old, something is wrong.  (And it is a temptation to would-be assassins, as we’ve already seen).

In the past I have jokingly proposed expanding the Supreme Court by letting each governor nominate a justice from his/her home state, while keeping the appointment of nine “at large” justices in the hands of the President.  But the more I’ve thought about this, the less jokey it seems.  A 59-justice court would be big enough to make it immune to sudden changes based on death by natural causes or otherwise.  Choosing justices from the 50 states would also make it more diverse – possibly in terms of race and gender and so on, but certainly in other ways.  Right now our Supreme Court is composed of what Dahlia Lithwick has called “judicial thoroughbreds” – hard-charging careerists with well-honed resumes who have been careful not to take any chances that might keep them off the top bench.  Their backgrounds are so similar that it’s hard to tell their biographies apart when the names are removed, as Ben Barton demonstrated in his excellent book, The Credentialed Court.  That’s unlikely for the state-appointed justices under my proposal.in

My proposal would require an amendment to the Constitution.  Simply enlarging the Court would not.  However, simply enlarging it by legislation would permit court “packing” by the party controlling the White House.  My approach would not, though of course a court-enlargement bill could be written in such a fashion as to add seats gradually over enough years to encompass multiple executives.

Well, these are my thoughts, in proper, tentative Substack form, as inspired by Danielle Allen’s proposal.  Feel free to set out yours in the comments.