For several years I have been asking former colleagues in the House of Representatives, “Why are there 435 members in the House?” They usually respond with a shrug or a short laugh and say, “Okay, you must know. Tell me.” The number of congressional members is not mandated by the Constitution. Nor does the size of congressional districts appear in the document. The number 435 was adopted in 1929, and it was a number driven by racism, xenophobia, and the self-interest of members. Yet it could all change with an act of Congress.
The Framers of the Constitution believed the “people’s branch” of government—the House—should grow in size as the population grew, thereby guaranteeing the people access to their elected representatives. The first Congress in 1789 had districts of 33,000 constituents; today’s districts have 740,000. Districts need to be smaller, and the membership of the House larger. That change in law would eliminate a 90-year monument to bigotry, make the House more democratic, and make the Electoral College more representative of the population of our country. Smaller districts, accompanied by redistricting and electoral reform, will also create more competitive districts, which will mean less virulently partisan candidates—and, hopefully, legislators. Republican candidates running in cities and the suburbs will find it hard to be xenophobic or to oppose reproductive rights and action on climate change. Meanwhile, Democrats in rural areas will be like the Southern Democrats I served with in the House in the 1970s and ‘80s: pro-business, pro-life, but also pro-civil rights. This may not end political polarization, but it is a vital first step in reforming the House.
It Started in Philadelphia
The answer to “Why 435” starts with the Constitutional Convention of 1787 and three contentious issues regarding the creation of the Senate and the House: the composition of the Senate; whether and how to count the enslaved population; and the size of the congressional districts.
On the first matter, James Madison had strenuously argued for proportional representation in both bodies. He believed this was essential for a strong national government. The mid-Atlantic small states—Connecticut, Delaware, Maryland, and New Jersey—were obdurate: equal representation in the Senate or nothing.
The second issue was how to count enslaved persons. In 1783, the Congress, desperate for revenue, sought to impose a per-state levy based on population, which raised the issue of whether and how to count the enslaved. The Southern states argued against the counting of any slaves because it would keep their revenue contribution lower; the Northern members wanted to count all slaves. Madison proposed a three-fifths compromise for revenue purposes—three out of every five of the enslaved population would be counted. Four years later, during the Constitutional Convention, the issue of how to count enslaved persons arose again. This time the issue was not revenue but representation, and the positions of the North and South were reversed. By 1787, enslaved persons made up about 40 percent of the populations of Maryland and the Southern states. Those states wanted to count enslaved persons in the same as “free people.” Some Northern states, concerned that the Southern states would “import slaves” to increase their population and thus their number of representatives, argued that no enslaved persons should be counted. Still others argued for another three-fifths rule—three of every five enslaved persons would be counted.
Finally, they had to decide on the number of people that constituted a congressional district—and thus the size of the House of Representatives. The only time George Washington, the convention’s chairman, spoke was to argue for smaller districts of 30,000 persons versus the leading alternative of 40,000 persons.
The second matter was settled first, when, in June 1787, the three-fifths rule was agreed to. In July, the “Great Compromise” passed 5-4, and small states were guaranteed equal representation in the Senate and proportional representation in the House. Finally, on the last day of the convention, September 17, Washington’s smaller district option was adopted.
The debate on the first matter, the size of the House, remained contentious during the state constitutional ratifying conventions, with states arguing for more members to improve constituents’ access to them as well as a means to prevent corruption. In 1789, James Madison, then running for a House seat, had written a campaign letter to the voters of his district promising them a “bill of rights” and a requirement to increase the size of the House. These amendments were the most important issues in his campaign for Congress against James Monroe, his opponent then and, 28 years later, his successor to the presidency. He defeated Monroe 1,308 to 972. Yes, the districts where much smaller then. Lesson learned, Congressman Madison went to New York as member of the First Congress and authored a series of amendments now known as the Bill of Rights. His proposed First Amendment was a guarantee that the House would begin with a defined number of members—which was not included in the Constitution—and would grow according to a specific formula laid out in the amendment. It fell short of ratification by one state. Had it been ratified, the freedoms we now enjoy as part of the First Amendment, including speech and the press, would have been the Second Amendment.
The 1920 Census: White, Rural America Reacts
For the next 120 years, from 1790-1910, membership in the House of Representatives grew as the population increased and as new states were admitted to the Union—with the exception of 1840, when the Congress reduced the size of the House membership. The Reapportionment Act of 1911 increased House membership from 386 to 433 and allowed a new member each from the Arizona and the New Mexico territories when they joined the Union. In 1912, Fenway Park opened, the Titanic sank, and the House had 435 members. Fenway Park has changed, ocean liners are ancient history—but the House still has the same number of representatives today as it did then, even as the population has more than tripled—from 92 million to 325 million.
After the 1920 Census determined that more Americans lived in cities than in the rural areas, a nativist Congress with a racist Southern core faced its decennial responsibility of reapportioning a country that had experienced a large growth in immigrants. The population had grown in ten years by 15 percent, to 106 million. Recent immigrants lived in vibrant enclaves with their fellow countrymen. They spoke their mother tongues, shopped at ethnic stores and markets, partied at ethnic clubs, and attended ethnic plays and movies. While 85 percent of Americans were native born, House members debating the effects of the Census routinely referred to the big cities as “foreign” and too much like the “old world.” In 1921 and 1924, Congress passed anti-immigration legislation, the second establishing a “national origins formula” that severely restricted immigration from Southern and Eastern Europe. Earlier anti-inclusion acts had already restricted immigration from Asia.
The congressional hearings held after that 1920 Census exposed the country’s racial separation and its urban-rural divide. The House Census Committee’s first hearing included African-American witnesses James Weldon Johnson and Walter White of the NAACP, Monroe Trotter from the National Equal Rights League, and George H. Harvey, general counsel of the Colored Council of Washington, who detailed the systematic discrimination against black voting. White testified that anyone helping blacks vote in certain Florida communities would be “subjected to mob violence.” The panel demanded that Congress use the Fourteenth Amendment’s provisions—specifically Section 2, which deals with apportionment and representation matters—to reduce a state’s congressional delegation as a penalty for denying its citizens the right to vote.
The Southerners on the committee, offended by the African Americans’ presence, rejected the evidence of discrimination. Representative William Larsen, Democrat of Georgia, said: “In my home, 1,365, I believe is the number, n——-s are registered. . . . We have a white primary, which has nothing to do with the general election. The n——— does not participate in the white primary.” He explained that blacks choose not to vote in the general election because their party—the Republican Party—“lacked the strength to win,” as historian Charles W. Eagles put it.
Meanwhile, as Congress debated how to reapportion the country, women got the right to vote, and alcohol was banned. Though World War I brought the country together, the end of the war brought two years of a “red scare” in which labor unions and “dissenters” of all types were harassed, jailed, and deported by Woodrow Wilson’s fanatical Attorney General A. Mitchell Palmer, who feared the spread of Soviet-style Communism.
By 1924, the Ku Klux Klan had 4 million members. The Klan was organized, lethal, and rapidly expanding to the West and Midwest. This “second rising” of the Klan had begun in 1915, and its membership was anti-black, anti-Catholic, anti-Semitic, anti-immigrant, and pro-Prohibition. In the South, the Klan was Democratic, in the West and Midwest it was Republican, and everywhere its members saw a country where white Protestants were losing power and immigrants were ascendant.
In 1929, having failed to agree on how to account for the growth in the country’s population, the House set by law the number of members at 435, or the 1912 level. Keeping the number at 435 ensured that Congress would not recognize the changes brought about by the African-American migration and the immigrant population growth in the Northern, Midwestern, and Western cities. The South and rural America, which dominated the House, rejoiced. At the last minute, the Republican authors of the bill removed a decades-long requirement that districts be compact, contiguous, and of equal population. The states were now free to draw districts of varying sizes and shapes, or to elect their representatives at large. (At-large representation had actually existed before, at the beginning of the republic, but was made illegal over the course of the nineteenth century.)
A Century-Plus Later, It’s Time for Change
No one would have imagined that the racist, anti-urban, arbitrary number of 435 would last, unchanged, for 108 years. Certainly not the Framers of the Constitution, who believed that the House should grow with each decennial Census. The “bargain” of 1929 that fixed the House at 435 members has allowed the average size of a congressional district to grow from 230,000 people to approximately 780,000 in 2020. Communication with constituents today is more and more electronic than personal. Some members still do in-person town halls, though social media makes organizing to disrupt them easy. As the districts grow in size, the likelihood of having personal contact with House members diminishes.
During my 18 years in Congress, the thousands of unscripted, often poignant, crazy, and contentious moments with my constituents shaped me and gave them a chance to take my measure. Today, members and their constituents can instantaneously communicate with each other, but a digital presence is no substitute for the real thing. It is like watching Fourth of July fireworks on your iPhone.
So what to do? I propose we do what the Founding Fathers thought made sense: Increase the size of the House of Representatives as the population grows so that it can become representative of the people once again. I once raised the idea of increasing the size of the House with a prominent member. The response did not surprise me: “Oh, they don’t like 435 of us now. Surely they won’t like more of us.” Probably true if the issue is presented solely as increasing the size of an already extremely unpopular and little-trusted institution. But what if the argument is not just about more members, but rather smaller and more representative districts and greater citizen access to their members? And what if the result is a more diverse group of representatives and even, possibly, a reduction in the polarization that paralyzes Congress today?
The first question is, what is the correct size of an expanded House? The Wyoming Rule provides one model for how to determine the size of new districts. It would decrease the number of people in a congressional district to the “lowest standard unit.” The Constitution provides that each state is entitled to at least one representative. Wyoming being currently the least populous state, its population (577,000) would be used to determine the “lowest standard unit,” which would then be the number of people in each congressional district across the country. To determine how many total members, the population of the country is divided by the “lowest standard unit.”
In 2020, the U.S. population is estimated to be 330-plus million. Wyoming’s population is likely to be close to what it is today. That would mean congressional districts of approximately 577,000 or so people. Not exactly small but significantly better than the 780,000 it is likely to be in 2020. The number of members in the House would increase by 142, from 435 to 577. Big enough to make a difference, but without being unwieldy. The Wyoming rule has the virtue of requiring only a statutory change.
So size is the first question. But it is not the only question. We also need to talk about how to expand the House. The idea of increasing the size of the House without the necessary electoral reforms would only exacerbate the absurd outcomes we see in states like North Carolina, where 50 percent of the votes cast in the 2018 election were for Democratic candidates yet Republicans won 10 of the state’s 13 House seats. Similar instances of gerrymandering in Wisconsin and Pennsylvania are being challenged in state courts. There is no excuse for allowing either Democrats or Republicans to engage in partisan redistricting. Last June, the Supreme Court ruled 5-4 in Rucho v. Common Cause that “partisan gerrymandering claims present political questions beyond the reach of the federal courts”—a shameful dereliction of the Court’s responsibility to protect the rights of all Americans to, as the minority wrote, “participate equally in the political process.” The Rucho decision is a return to 1940s Supreme Court reasoning that electoral questions are best left to the political sphere, which the Court had overcome by 1962, when it ruled in Baker v. Carr that such political questions were indeed within the Court’s purview. While we wait for legislative action, former Attorney General Eric Holder’s National Democratic Redistricting Committee has vigorously fought a state-by-state battle to insure that the 2020 redistricting maps are nonpartisan. In North Carolina, the group’s efforts were successful recently when a three-judge panel ruled that new nonpartisan districts must replace the Republican gerrymandered plan.
How do we proceed simultaneously to expand and reform? There are several thoughtful plans that could frame the debate. The place to start is a package of election and voting reforms introduced by Maryland Democratic Congressman John Sarbanes that includes a provision for nonpartisan commissions in the states to examine how to draw district lines fairly. It passed the House in March, but Senate Majority Leader McConnell, unsurprisingly, will not bring it up in the Senate.
Another possible change would be to give states the option to take some number of the added congressional seats and have them elected “at-large” on a statewide basis. Electing some members statewide will result in greater voter participation and more competitive House races, which is likely to mean fewer extreme candidates. Here’s how it might work. After the Census, in states receiving additional seats, parties would advance a list of statewide candidates. The total number of votes cast for all the Democrats and Republicans running in the state’s individual district races would be tallied to determine which party’s at-large candidates would be elected. So, for example, if the votes cast for Democrats running in all of the district races amounted to 60 percent of the total statewide vote—Democrats would receive 60 percent of the at-large seats, and the Republicans would get 40 percent. The at-large concept is more nuanced than this example and is most likely to make sense in more populated states. Many states will not qualify for an at-large seat, and some will get only one or two seats, but even in those instances there would be a strong incentive to maximize individual district turnout; at-large/statewide elections will drive both parties to field candidates in every district in an effort to run up the statewide voting totals. The days of candidates running unopposed would be over. Even in the districts that were overwhelmingly Democratic, the Republicans would still want to field a serious candidate to increase their aggregate statewide vote total. The same would be true for Democrats in strong Republican areas.
More competition for every seat will have a moderating effect on both parties. In order to be effective in maximizing their vote, parties will have to field candidates who appeal to more than a narrow ideological base. In a further effort to drive up turnout the parties might want to field at-large candidates of prominence: Arnold Schwarzenegger in California, Beto O’Rouke in Texas, Andrew Gillum in Florida, Michael Bloomberg and Shepard Smith in New York, Ashley Judd in Kentucky, and Madeleine Albright in Virginia.
Don’t Forget the Electoral College
Increasing the total number of House members would also increase the size of the Electoral College by approximately 142, from 538 to 680 members.
What impact would this have? In sum, the more populated states would increase their number of Electoral College votes significantly. Consider a comparison of Wyoming and Florida. Today, Wyoming, with a population of 577,000, gets three electoral votes—one electoral vote per 193,000 people. Florida, meanwhile, with a population of 21.3 million, gets 29 electors—one electoral vote for every 734,500 people. But if congressional districts were reduced from 720,000 people to 577,000, Florida would grow to 37 congressional districts, and 39 electors, while Wyoming would still have just the three. Ohio would get four more congressional seats, and Michigan three more. The big winners of course would be California with 16 more seats and Texas with 15. This would translate into 71 electoral votes for California and 53 for Texas.
Of course, the small states would hate this. But the Electoral College has given small states disproportionate power throughout our history. Also, of course, slave states, in the beginning: The three-fifths compromise for counting enslaved people adopted at the Constitutional Convention gave the South more Electoral College votes, which resulted in five of the first six presidents being from Virginia. All five were slaveholders.
A constitutional amendment to abolish the Electoral College would be the best way to proceed, but it’s extremely unlikely. Increasing the size of the Electoral College would reduce the small-state advantage. The large and growing states—Florida, Texas, California, other Sun Belt states—will become more important to the outcome of the presidential election. Whether this increase in the larger states will favor one party over the other is not clear, but the means by which we elect a President will certainly be more representative of the population. And, of course, Nate Silver will have to change the name of his website.
Time for a Debate
For 140 years, the right size of congressional districts was hotly debated. Yet we haven’t had a serious debate on the size of House districts in 90 years, during which time the country’s population has more than tripled. The stasis has left us an outlier among representative democracies. U.S. House districts are gigantic compared to “lower house” constituencies in Europe. Great Britain’s House of Commons has 650 members, each representing about 110,000 people. France’s Chamber of Deputies is 577, Germany’s Bundestag is 709; both, about 100,000-plus people per constituency. The Japanese Diet’s lower house with 465 members is the next closest in size to the U.S. House, but its districts are much smaller, with about 272,000 people.
The Framers recognized that the population would grow and the country would change. The population has tripled since 1910, the demographic makeup of our country has changed, but that change is not matched in the makeup of the congressional membership. According to the Pew Research Center, in 2017, whites accounted for 81 percent of Congress but just 62 percent of the population. In the 2018 Congress, women make up 20 percent of the membership, despite being just more than half the population. In the last five decades, the Hispanic population increased more than fivefold. Yet the percentage of Hispanics in Congress, while it has grown, is still just shy of 8 percent. Expanding the House gives us a chance to have a legislative branch that is representative of the people in more ways than one.
Many have said to me that the idea of more members is simply crazy. But what is truly crazy, sad, and inarguably objectionable is that a racist, nativist congressional decision of 90 years ago still stands. Four hundred and thirty-five members is tantamount to a Confederate Battle Flag of numbers hiding in plain sight. Apparently there is no real understanding of the Framers’ intent that House districts grow in number as the population increases. Where are the “strict constructionists” when we really need them? While we debate what questions to ask on the next Census form, there appears to be little recognition that the purpose of Article 1, Section 2 of the Constitution was to determine the size of a growing House of Representatives.
Congress will not decrease the size of districts without a fight, of course. Why would any member want to dilute his or her individual power and authority? But for democracy to work, democratic institutions must have the trust and support of the people. The Framers promised a people’s House. It is time to honor that promise. Congress owes it to the American people to revisit the decision of 435 made 108 years ago and adopted into law 90 years ago.
Visit your member of Congress, ask them why there are 435 members of the House; since you now know, you could educate them and the process of reform can begin.