Rethinking representation with an expanded House and Senate

Congressional reform for a new era

In the aftermath of Watergate, Congress enacted sweeping reforms to restore public trust and strengthen accountability, including campaign finance rules, the creation of the Federal Election Commission, the Ethics in Government Act, and the War Powers Resolution--measures that reshaped the balance of power and continue to shape American governance five decades later.

Against that backdrop, the Daily Journal invited constitutional law professors, legal historians, and good-government advocates--experts in constitutional structure and reform from across the ideological spectrum--to answer a timely question: If Congress were to enact a new round of reforms today, meant to endure for the next 50 years, what one reform would you propose, and why? This is the fifth installment in a six-part series.

It is not an easy task, with a thoroughly dysfunctional Congress now operating in a tribal environment, where most of the reforms that have been suggested would apply to a very different Congress and environment. But there are things that could be done that would be more transformative given a longer time frame. I am actually going to suggest one each for the House and Senate.

For the House, my one reform would be to enlarge it. The House was supposed to be the body closest to the populace; the Framers wanted to cap the size of districts at 15,000, then 30,000. To keep districts more intimate, the size of the House was adjusted every ten years to reflect changes in population as shown by the decennial Census. But that changed in 1910. There was no change in size after that Census, nor after the 1920 Census. And as the next one approached, Congress passed a law capping the House size at 435. Why no change beginning in 1911? The most powerful explanation is that Southern conservatives, alarmed at the increase in population caused by the flood of immigrants coming to the North through Ellis Island, and the move of Black Americans from the repressive South to the North, did not want a major enlargement of non-Southern seats.

There is nothing magical about the number 435. And as the overall population has grown, it has meant district sizes have ballooned to around 800,000, leaving representatives further and further removed from their voters. With sophisticated computer programs and the Supreme Court insisting that districts be equal in population, the larger size makes it easier to engage in gerrymandering, ignoring the desire to have the districts respect compactness and natural boundaries.

The trick in enlarging the House is to find an appropriate formula that also respects the need to have a larger number fit the physical plant in the Capitol complex, while also maintaining at least some level of face-to-face interaction among the members. A commission of the American Academy of Arts and Sciences, of which I am a member, came up with a balanced and reasonable formula to enlarge it by 150 members and Drew Penrose of Protect Democracy showed a creative way of making it work in a much more vibrant Capitol Hill. The process would also open the door to future expansions based on population increases. And the Academy's work made it clear that there would be no partisan advantage in this reform.

This enlargement would cut the size of districts by almost a third, making it easier for representatives to be close to their constituents. And a larger House would mean more compact districts, making it harder to distort representation through excessive partisan redistricting.

Now the Senate. When the Constitution was created, the need to accommodate the states to get consensus for ratification meant a Senate with each state having two senators regardless of its size--and a separate constitutional provision requiring equal representation in the body for states. At that time, the ratio of population between the smallest and largest states was 10 or 12 to 1. Now, it is more than 70 to 1, making the Senate increasingly less representative. There is another trend that is unsettling. We are close to having 70% of Americans living in just 15 states. That will mean 30% of Americans will choose 70 of the 100 senators, and that 30% is in no way representative of the diversity or economic dynamism of the country. It is also true that as most of our states have become less competitive in partisan terms--firmly blue or red--representation is also more distorted.

In a republican form of democracy, people choose representatives who are supposed to represent them. What happens when that is no longer remotely true? Over time, it will create a crisis in legitimacy. So, there is a big challenge: how to make the Senate more representative within a constitutional framework that requires each state to have two senators.

My solution: enlarge the Senate by 21--with seven seats up every two years, two elected nationally and the other five in regions. These elections, especially in midterm years, would create more excitement and higher stakes, meaning likely higher turnout, and a much higher level of competition across party lines. National and regional senators would have a higher profile, and more incentive to represent a broader swath of voters and interests that cut across party lines.

At some point, we will move past the immediate threat to the fundamentals of our democracy. But if and when that happens, it will be clear that there are elements of our constitutional structure that no longer work the way they should. Hard as it would be to implement these two changes, they would be game changers in a positive way.

Editor's Note: In the aftermath of Watergate, Congress enacted sweeping reforms to restore public trust and strengthen accountability, including campaign finance rules, the creation of the Federal Election Commission, the Ethics in Government Act, and the War Powers Resolution--measures that reshaped the balance of power and continue to shape American governance five decades later.

Against that backdrop, the Daily Journal invited constitutional law professors, legal historians, and good-government advocates--experts in constitutional structure and reform from across the ideological spectrum--to answer a timely question: If Congress were to enact a new round of reforms today, meant to endure for the next 50 years, what one reform would you propose, and why? This is the fifth installment in a six-part series.