Orientation and Getting Started
Early Development of the Legislative Branch and the Problem of Representation
Enumerated Powers of Congress
Implied, Expansive, and Limited Powers
The Two Congresses: Representation and Lawmaking
Bicameralism
Separation of Powers and Interaction between the Branches
Institutional Development and Change
Congress and the American People

Reforming Congress

Reformers have presented many ideas to improve Congress. In light of recent criticisms, we consider reforms that seek to improve deliberation, reduce polarization and obstruction, and restore Congress’ power in relation to the President. Presumably, such reforms would also enhance public approval of Congress and enable its members to be both responsive and responsible in the public eye.  The ultimate test is how well reforms measure up to expectations of deliberative democracy, or in Madison’s terms, whether they enable Congress to “refine and enlarge the public interest.” (Federalist, No. 10) In this vein, we also need to realize that reforms can have limited and unintended consequences.

In his book, A More Perfect Constitution, political scientist Larry Sabato (2007) proposes constitutional amendments that would change Congress, but should be rooted in constitutional values. Several of his congressional reforms relate to the goals set forth above: (1) enlarging the Senate and adding national Senators; (2) changing the process for redistricting House seats, and (3) increasing the size of the House. Other scholars and reform groups advocate reforms proposals that do not involve constitutional amendment. We will consider the filibuster rule in the Senate and ideas that allow for more debate and more deliberation in the House. 

Constitutional Amendments

Enlarging and Nationalizing the Senate

The Great Compromise, which allocated the same number of senators to each state, solved a particular problem at the Federal Convention, gaining the support of delegates from small states who opposed proportional representation. Recall that Madison believed allocating equal numbers of senators to each state violated republican principles. As history would have it, given the large population increases unevenly distributed across fifty states, the problem Madison identified long ago has only gotten worse. When the Constitution was ratified the population ratio between the largest state (Virginia) and the smallest (Delaware) was 12 to 1. Today, the difference between the largest state (California) and the smallest (Wyoming) is 70 to 1. Strictly on the basis of a person-to-senator ratio, Wyoming has a huge representational advantage.

In an effort to improve the representational balance, Sabato suggests increasing the Senate by thirty-five members by giving two additional seats to the ten states with the largest populations and one to the fifteen states with the next largest populations. Senate seats would be reapportioned every ten years according to population changes to determine the top 25 states. The change would allow more equitable representation, without either dramatically increasing the size of the Senate or the cost of operation.

To enhance the national stature of the Senate, Sabato would award seats to former Presidents and Vice Presidents. Since presidents and vice-presidents already receive a handsome pension, their service would not be very costly if their salaries were covered by pension funds. Their vast experiences and deep knowledge of issues would allow these “statesman” to add wisdom to Senate deliberations and raise the sights of the Senate from local concerns to national and international affairs. These “national Senators” would not be elected and could serve for as long as they wish.

Notwithstanding the practical question of whether former presidents would work for $150,000 per year when they can earn just as much by making a single speech, the presence of unelected Senators, particularly if they are given voting powers, violates a basic principle of republican governance. As Madison points out, “It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.” (Federalist, No. 39)

Nonpartisan Redistricting Commissions

Lack of competition in House elections is generally considered a problem with the contemporary Congress, and some analysts attribute the problem to partisan or incumbent gerrymandering of congressional districts. States use one of three means for redistricting after reapportionment based on the ten year census prescribed in Article I, section 2: (1) a bill drafted and approved by the state assembly and signed by the governor, (2) a commission created by the state assembly for that purpose, and (3) in the sole case of Iowa, a state government agency. The first two processes, particularly the first one, are subjected to the influence of incumbent members of the House, the political parties that control state government, or both. The expanse of data on election results by voting precinct and the mapping software available to analyze that data enable state legislators to draw district lines that heavily favor incumbents and/or representatives of a particular party. With enough prodding from incumbent members of Congress, it is no exaggeration to say that sitting representatives can pick their voters, or at least have their colleagues in state legislatures pick the voters for them. 

Sabato (2007, 35) recommends a constitutional amendment that “calls for universal nonpartisan redistricting.” The guiding principles of this constitutional redistricting regime would be “compactness in the districts, increased partisan competition, and the needs of voters rather than politicians.” (Sabato assumes that redistricting would also accommodate “necessary allowances for drawing required racial and ethnic minority districts,” a criterion that emerged from interpretations of the Voting Rights Act of 1975. The future of majority-minority districts is uncertain after a 2013 Supreme Court decision [Shelby County v. Holder] that struck down a part of Section 4 of the Voting Rights Act, which includes the formula for determining which states need pre-clearance from the Justice Department to change their election laws.

Sabato’s proposal is based partly on the assumption that partisan or incumbent gerrymandering explains the lack of competition in House elections. The lack of competition itself in indisputable. Given the partisan distribution of voters across districts, political analyst Charlie Cook (2016) predicts that for the 2016 elections only 15 seats are “toss ups” and 16 more “lean” toward one party or the other. Therefore, if normal patterns hold up, only 31 of 435 House seats will be competitive. According to the logic of reformers, the lack of competition can’t possibly be an accident. In search of a solution, reformers look to the redistricting process. 

But, in spite of the coincidence of incumbent gerrymandering and a very low number of competitive House races, redistricting is, at best, only partly to blame. The most significant reason for uncompetitive House districts is the behavior of the voters themselves, who have become more closely aligned with either one party or the other and who choose to live in communities with people who share their values. Based on an extensive analysis of polling data and election results, political scientist Alan Abramowitz (2010, 9-10) finds: 

“Contrary to what appears to be a widely held belief among pundits and media commentators, the decline in the number of competitive congressional districts, like the decline in the number of states and counties, cannot be explained by partisan gerrymandering. Instead, it is a product of an ideological realignment that has produced a dramatic increase in the correspondence between ideology and partisanship among the engaged public.” 

Abramowitz finds that “Migration patterns have reinforced the effects of this ideological realignment. Americans…are increasingly choosing where to live on the basis of lifestyle preferences that are strongly related to political attitudes.”  Thus, “Americans are increasingly surrounded by those who share their political outlook: liberal Democrats by other liberal Democrats, and conservative Republicans by other conservative Republicans.”

This conclusion, by itself, should not lead us to reject Sabato’s proposal. For one thing, although it is unrealistic to assume that any commission would be truly “nonpartisan,” a body of citizens operating outside of the state legislature is bound to be less interested in the electoral fate of incumbent members of Congress than the state legislators or members of Congress themselves. Moreover, such commissions, specifically given the instruction to prioritize competition in the redistricting process, are likely to increase the number of districts.  Marginal gains in competitive House seats can be realized by using Sabato’s guidelines, and every additional competitive seat helps. Nonetheless, the evidence suggests that redistricting reform is not a panacea; the effects on competition in House elections could very well be minimal. 

Enlarging the House

As we discussed in Module 5, population growth through the early twentieth century caused Congress to cap the number of House seats at 435. While this law has kept the size of the House at a reasonable number, the average population of a House district has grown dramatically, leaving members of Congress to represent much larger constituencies. Based on the 2010 census, the average population of a House district is just under 711,000 people, more than 23 times greater than the ratio of 1 in every 30,000 specified in Article I, section 2. A larger House could significantly lower this ratio. 

The question is how much larger? Sabato suggests increasing the House to 1,000 members, a proposal advocated by the conservative commentator George Will. Sabato assumes that the costs of expansion could be controlled by keeping the total number of staff the same size and distributing them across the larger membership. Sabato cites several advantages to a larger House. First, members would have more personal contact with their constituents. Second, there would be more opportunities for representation of ethnic, racial, social, and religious groups, since those groups would approximate majorities in smaller districts. Third, lower costs for campaigns communications would reduce the time spent on fundraising. Fourth, the number of “nonprofessional” politicians would increase.

Sabato does not consider possible negative consequences of more than doubling the size of the House. A few questions should be addressed before the House is more than doubled in size. What are the logical consequences of a larger House? Would the House still meet together in the Committee of the Whole? And, if so, would this mean more than doubling the physical size of the House chamber? Or, would the House use communications technology to meet virtually rather than in person? He also does not consider the effects of a larger House on partisan polarization. Would a larger House mean a larger or smaller portion of competitive districts? Population sorting has created more homogenous communities and contributed to party polarization; wouldn’t smaller constituencies be even more homogenous than larger ones? Would more members from smaller districts increase polarization and partisan gridlock? 

A larger House could also worsen the prospect of deliberation. Although Madison expected the House to grow, he was also concerned about it becoming too large. The House should be small enough to “secure the benefits of free consultation and discussion…” and to “avoid the confusion and intemperance of a multitude.” And, “In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” (Federalist, No. 55) House rules that limit debate and amendment might curtail the worst effects of a mob, but they would also likely weaken deliberation and make it even harder for members to collaborate, socialize, and build mutual trust.

In sum, a larger House might improve representation, but it might also make lawmaking and deliberation more difficult.