Building a Bigger House

03/18/2010 05:12 am ET | Updated May 25, 2011

Will a recent lawsuit result in Congress's most dramatic upheaval in almost a hundred years? Probably not, but that's the quixotic hope of the parties who brought the case. They think that the U.S. House of Representatives is unconstitutional in its current form, and that the only solution is to drastically increase its size.

The plaintiffs are registered voters from Delaware, Mississippi, Montana, South Dakota, and Utah, and they are represented by conservative lawyer Michael Farris. Their gripe is that the 435 seats in the House are not fairly distributed among the states. Their own home states, in particular, have much larger House districts than the national average of about 650,000 people. Montana's one district, for example, contains more than 900,000 people, while Utah's three districts average about 750,000. In contrast, Wyoming, the country's least populous state, has just 500,000 people in its one district.

The plaintiffs say "this lawsuit is the first of its kind." Even more curious than their suit is their suggested remedy. They hope the court will order the House to be increased to either 932 or 1,761 Representatives. Either of those sizes, in their view, would "offer[] a significant improvement over the current system . . . by reducing the level of over and under-representation."

Not surprisingly, the plaintiffs' case is pretty weak. While no court has rejected their exact argument, the Supreme Court came close in a pair of 1990s apportionment decisions. In the first case, involving a challenge to the formula for distributing House seats, the Court observed that "the need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible to have the same size district in any pair of States, let alone in all 50." In the second case, involving objections to Census sampling techniques, the Court similarly noted that "constitutional requirements," such as "each State shall have at least one Representative; and district boundaries may not cross state lines," "make it impossible to achieve population equality among interstate districts."

The plaintiffs' own suggested remedy confirms that interstate differences in district size cannot be eliminated. According to their data, even if the House's membership were quadrupled, the largest and smallest districts nationwide would still deviate from the ideal size by a total of about ten percent. (In contrast, intrastate deviations of more than about one percent are prohibited.) And even if all House districts could somehow be equalized at the start of each Census cycle, their sizes would still be different at the end, thanks to varying rates of population change. In the 1990s, for example, both Nevada's Second Congressional District and Maryland's Seventh Congressional District began the decade at 600,000 people, but they ended it, respectively, at over 1,000,000 and under 550,000.

While the plaintiffs are unlikely to prevail in court, they are not crazy to be concerned about the size of the House. New seats were added to the House every decade from 1790 (when there were 69 members) until 1910 (when the current number of 435 was adopted). But after Congress deadlocked for political reasons in 1920 and 1929, the House's size froze - and has remained frozen even as the U.S. population has more than tripled. According to University of Connecticut political scientist Jeffrey Ladewig and others, the House is now smaller, relative to national population, than any other Western country's legislature. A more appropriate size would be about 670 Representatives (i.e., the cube root of the U.S. population of about 300 million).

Political scientists predict that a larger House would produce Representatives who are more accessible to (and better liked by) their constituents. The smaller the district, the more contact politicians can have with the people. More House seats would also mean more representation for minorities of all sorts. Racial and ethnic groups, women, and candidates with unusual political views would all find it easier to win in districts that are smaller and more varied. And a House with 600-700 members would still be quite manageable. The British House of Commons, for instance, has 646 seats and functions at least as well as Congress.

A larger House, lastly, would cause the Electoral College to better approximate the popular vote in presidential elections. States are assigned as many Electors as they have Representatives and Senators combined. So if the House were substantially bigger, the impact of each state's two Senators would be (properly!) overwhelmed by the flood of new Representatives, all allocated based on states' populations. In 2000, Farris might be surprised to learn, Al Gore would have squeaked out a narrow Electoral College victory had the House consisted of 629 Representatives (the number then appropriate).

The plaintiffs, then, would be well advised to abandon their lawsuit and to switch their efforts to the political arena. No court is likely to give them the relief they seek. But Congress has repeatedly increased the House's membership in the past, and there is no reason why it cannot do so again. Grassroots organizing and backroom lobbying may not be as satisfying as filing suit - but they are the only way this battle can be won.

(A different version of this column appeared in the Baltimore Sun today.)