The dysfunction of the U.S. House of Representatives has been on embarrassing display, from the chaos surrounding the election of Speaker Kevin McCarthy (R-Calif.) to the lengthy impasse over raising the debt ceiling.
Professor Danielle Allen, the eminent Harvard political theorist, has a suggestion for fixing it. In a series of columns for The Washington Post, Allen contends that “growing the House of Representatives is the key to unlocking our present paralysis.”
Unfortunately, she is wrong. Adding members to the House will only increase partisanship and feed extremism, as the behavior of state legislatures has amply demonstrated.
Expanding the House of Representatives may seem like an obvious improvement. Its current 435-member size was established by the Permanent Apportionment Act of 1929 when the U.S. population was just over a third of what it is today. The average number of constituents per representative has ballooned from about 283,000 in 1930 to roughly 762,000 in a little under a century. There were only 65 members in the first Congress, each representing roughly 35,000 constituents, but, as Allen points out, the Framers expected there would be upward adjustments following every decennial census.
As a first step, Allen proposes a “deferred maintenance” approach, updating the House to 585 seats with more expansion to come. Smaller districts would theoretically bring representatives closer to the people, but comparisons to earlier eras do not make much sense. Newspapers were delivered on horseback in 1788 when the first congressional elections were held. In 1929, only 40 percent of American households owned a radio. Today, social media and smartphones have made constituent communication easier by orders of magnitude.
Allen argues that continuously enlarging the House will “get our politics working again,” but she fails to reckon with the virtual certainty of partisan gerrymandering. Smaller districts would be an invitation for state legislatures to redraw U.S. congressional lines for political advantage, with ever greater opportunities to “crack and pack” minority party voters.
Many state legislatures have perfected the art of gerrymandering their own seats. Although Wisconsin’s statewide vote is nearly always almost evenly split between Democrats and Republicans, its 99 assembly districts, averaging under 60,000 constituents, currently have a 64-35 Republican majority. The disproportion is even greater in the Wisconsin state Senate, where Republicans hold a supermajority of 22-11 in districts comprising about 120,000 constituents.
The same is true in North Carolina, where the statewide vote is often narrowly divided between parties. The state’s House of Representatives, with districts of about 83,000, has a 71-49 Republican majority.
Blue states are equal-opportunity gerrymanderers. Massachusetts voters, for example, chose Republican governors in seven of the last 10 statewide elections, sometimes by wide margins. Nonetheless, Democrats control the state House of Representatives by an overwhelming 132-25 (with one independent and two vacancies), in districts averaging about 44,000 constituents. Former President Trump got 32 percent of the Massachusetts vote in 2020, but Republicans (including never-Trumpers) hold only 15 percent of the seats in the state legislature.
The same pattern can be seen in state after state. Legislative districts far smaller than those in the U.S. House of Representatives have enabled radical gerrymandering, in some cases, ensconcing supermajorities far out of proportion to the actual electorates.
It is true, as Allen notes, that “smaller districts would give candidates from minority groups and nontraditional backgrounds a more feasible path to electoral victory,” but that will hardly matter in legislatures under radical one-party control.
Montana’s 100-member House of Representatives averages only about 11,000 constituents per member. Thus, it was possible for Zooey Zephyr, a transgender Democrat, to be elected from Missoula, where the University of Montana is located.
Zephyr’s voice, however, was quickly silenced by the Republican supermajority, which barred her from speaking on the chamber floor after she told legislators they would have “blood” on their hands if they banned gender-affirming care for Montana youths.
Allen’s proposal would increase the House by 150 members, providing several more representatives to all but the smallest states (which would still have one apiece). The U.S. Supreme Court, in Rucho v. Common Cause, gave the go-ahead to extreme partisan gerrymandering. Can there be any doubt that the majorities in most state legislatures would design the new congressional districts to further entrench their own parties?
Expanding the U.S. House of Representatives may, in some sense, be faithful to the Framers’ vision. It might conceivably improve communication between representatives and voters, or somewhat reduce pressure on fundraising. But as the experience of state legislatures shows, smaller districts do not bring greater democracy or enhance minorities’ access to power. Congressional gridlock has become a dangerous problem, but adding legislators is not going to fix it.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the coauthor of “Judicial Conduct and Ethics” (Fifth edition) and has written many other books.