The Law That Broke the House of Representatives
By: George Dillard
Tags: Politics, Congress, History, Law, Government

The Law That Broke the House of Representatives

Photo by Louis Velazquez on Unsplash

American democracy has a number of institutions that work suboptimally, to put it mildly. The Senate and the Electoral College were essentially designed to be unrepresentative.

They over-represent rural populations and low-population states and under-represent more densely populated parts of the country. The judiciary has become a center of partisan warfare, with parties trying to squeeze in the youngest, most radical nominees possible.

Compared to other parts of our system, the House of Representatives has remained relatively unexamined. Many Americans don’t realize that a now-obscure law passed in 1929 — as a reaction to very modern-sounding tension between urban and rural populations — has stuck Congress in the last century.

The Constitution doesn’t say how many members the House of Representatives should have. Its only directives are that members of the House should represent no fewer than 30,000 people, and that each state should have at least one Representative. The framers seem to have intended to keep districts small — a Constitutional amendment limiting districts to a maximum of 50,000 citizens was proposed along with the Bill of Rights, though it never passed.

The size of Congress changed constantly for most of American history. There were 65 members in the first Congress after the Constitution was ratified. As new states joined the union and the population grew, Congress adjusted the size of the House 29 times between the first House elections and the Civil War.

By 1861, the House had almost quadrupled in size to 238 members. The size of the House changed 19 more times between 1861 and 1913, when it hit 435 members. It’s been stuck there for the last 107 years.

How did the House get stuck at 435?

A century-old census is the root of the problem (PD)

After each census, Congress is expected to reapportion districts in the House based on the new population numbers.

In 1920, Congress simply didn’t pass a reapportionment, due to the machinations of rural politicians. The issues faced by the United States in a century ago weren’t that different from our modern controversies — it was a country healing from a pandemic, roiled by disagreement over immigration, in which rural Americans (who mostly voted Republican) felt increasingly alienated from booming, diverse cities (which, you guessed it, voted Democratic).

There was even a controversy about the census! The 1920 census verified the demographic changes in the country; for the first time, more Americans lived in urban areas than rural ones.

Republicans were angry about the census results, arguing that the growth of urban areas was due to the immigration that they thought was destroying the country. Some House members moved to stop the counting of people who were not citizens, just like this year.

Many rural Representatives worried that their seats would disappear as more urban districts were drawn. Republicans controlled the House, and they thought they would lose their jobs if Congressional seats were reapportioned as they had been after every previous census.

So Congress ignored what had been, up to that point, a routine matter. The House enacted a classic stalling tactic and put together a panel to study the issue.

Meanwhile, both sides moved to steer the reapportionment in their direction. Anti-immigrant politicians tried to pass a number of laws limiting immigration. A Constitutional amendment was proposed to exclude immigrants from reapportionment calculations.

Meanwhile, urban northern states proposed enforcing a portion of the 14th Amendment that would have apportioned seats to southern states based on the number of actually enfranchised voters. Since most of these states had racist policies making it impossible for African-Americans to vote, this would have seriously reduced the number of seats given to southern states.

Congress ended up in a deadlock. No reapportionment bill could pass in the 66th, 67th, 68th, 69th, or 70th Congress.

Congress’ failure to reapportion became more and more worrisome. By the end of the 1920s, Congressional districts had become seriously lopsided. One Congressman in rapidly growing Detroit represented over a million people, while the average Representative served just 200,000. Political observers feared a constitutional crisis over something that has become standard today— what if a presidential candidate won the popular vote but not the electoral college due to the failure to reapportion seats in Congress?

After his election as President in 1928, Herbert Hoover pressured Congress to do something about the problem, but Congress had broken the cycle of constant enlargement of the House. Having gotten a taste of what it would be like if they did not dilute their own power, they resolved to hold the line and avoid future conflict. Since reapportionment had become a gridlocked, polarized issue, the House instituted an “automatic” process by passing the Reapportionment Act of 1929.

The Reapportionment Act didn’t get much attention when it was passed (it was overshadowed a few months later by the Great Depression), and it’s been largely forgotten today. Even its name makes it seem like a dry-as-dust piece of Congressional arcana.

It was met with relief by many members of Congress — they avoided the once-a-decade fight over apportionment, and, as Republican Majority Leader John Tilson said, “the danger of failing to reapportion” as the Constitution instructed. The act quietly but fundamentally changed the way that Congress worked. It held the number of House members at 435, which is where it had been after the 1910 census, and this is where it has stayed (with a temporary exception when Hawaii and Alaska joined as new states).

Since 1913, the population of the United States has increased from 92 million people to over 330 million, but the size of our Congress has been static.

Why does it matter?

Since 1913, the number of constituents per House member has almost quadrupled (PD)

What would Congress be like if there were many more members in the House?

The United States has one of the highest constituent-to-representative ratios in the world; only India, with over a billion people, has more. Most advanced democracies have one representative for every 200,000 people at most, which is about what our ratio was in the U.S. before we stopped expanding Congress.

The United Kingdom, for example, with a population of 68 million people, has 650 members in the House of Commons, for a ratio of about 100,000 constituents per M.P. Our House members serve almost 750,000 constituents on average.

Most serious proposals call for increasing the size of the House by something like 50% to 100% (anything over 1,000 members would likely become unwieldy) . Why would a House with 700–1000 members be preferable to what we have now? Experts have made a number of persuasive cases. They argue that:

House members with too many constituents become less responsive to their voters, which makes politics too nationalized.

Congresspeople who are less responsive to local needs may become more responsive to lobbyists and industry, and help special interests at the expense of the people back home.

Larger districts require more money for campaigning. This means that, in many cases, the only viable candidates are people with considerable personal wealth or fundraising connections.

Americans who need constituent services from a Congressperson have a harder time getting what they need. This has become a real problem during the pandemic.

A larger House might allow for more ideological diversity, and maybe even a few third-party Congresspeople.

More districts may make some of the diabolical gerrymandering we have seen in recent years difficult. It would also allow districts to be more equal in size — some Congressional districts right now have almost a million constituents.

Perhaps most importantly, more representatives would go some way toward fixing the Electoral College problem by making each state’s share of the Electoral College closer to its real proportion of the population.

Our House of Representatives — envisioned as the People’s House — could be a more responsive, more representative, and more democratic institution. The stagnation of the size of the House is part of a larger problem: our government seems to have stopped adapting to our changing country.

We are stuck with a system that doesn’t work particularly well, but we can’t muster the political will or creativity to change it. Making America work better will take a little bit of tinkering. Maybe the House of Representatives is the place to start.