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Increasing the size of Congress could limit campaign spending

June 30, 2000
Web posted at: 11:54 a.m. EST (1554 GMT)

WritLegal commentary from FindLaw's Writ
Consumer Center
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(FindLaw) -- Americans tend to view campaign finance reform as a regulatory problem. As a result, we debate how to limit contributions and expenditures, but find ourselves hamstrung by First Amendment limitations that define such spending as protected political speech.

Such reforms would be valuable, but they don't address one major reason why money now decides congressional elections: The population has grown but the legislature has not.

Races for congressional seats are competitive, vicious, and, above all,expensive because congressional seats are relatively rare. Increasing the size of the House could profoundly change the character of our political life and accomplish many of the goals of campaign finance reform, but without raising any First Amendment issues at all.

What the framers intended

Many people believe the constitution sets the exact number of representatives in the House at 435. In fact, the constitution only sets a ceiling for the number of legislators that is based on population, stating that the number of representatives may not exceed one for every thirty thousand inhabitants.

Strikingly, the Founding Fathers debated whether to impose this fairly generous ceiling. Eighteenth-century critics of the constitution -- such as New York's Melancton Smith -- argued that small legislatures were unresponsive and potentially dishonest.

Smith's argument for a large, responsive legislature lost the day. But anyone who's sent a letter to a representative only to receive a reply written by a 23-year-old intern and signed by a machine can attest that Smith's point still stands. Have you ever met your representative? I haven't.

Given the scope of our districts, such personal relationships are nearly inconceivable. Yet when the Republic began, they were commonplace. The nation's first legislature had 106 members representing 3.5 million inhabitants, or one per 33,000 Americans. Today, the mayor of Valdosta, Georgia, has a bigger constituency.

In the 19th Century, the Congress grew along with the nation. In 1911, however, Progressive reformers finally capped the house at 435 seeking to "improve" the quality of representation by diluting the growing immigrant vote. Except for tiny fluctuations reflecting the admission of new states, the number has stayed the same. That's a 90-year freeze, imposed by statute not by the Constitution.

Thus, as the population has grown, the number of representatives per capita has only shrunk. Our 435 representatives represent over 250 million inhabitants, making the ratio one per 570 thousand. If applied to the original Congress of 1788, such a ratio would have produced a house with six members rather than 106. Ours, then, is an elite legislature of the kind many founders rejected as undemocratic and corrupt.

Expanding the House's size

Representatives depend on fundraising and television to address the huge constituencies mandated by the freeze at 435. With over half a million voters to reach, a candidate who refuses to use television can kiss every baby, attend every funeral, and dedicate every mini-mall and still lose by a landslide.

This dependence on money gives corporations and wealthy donors a disproportionate role in campaigns and in legislative affairs. Attempts to give ordinary citizens a louder voice by limiting spending have run afoul of the First Amendment. In Buckley v. Valeo, the Supreme Court voided mandatory spending limits as unconstitutional, placing a high hurdle before any potential reforms. Increasing the House's size would effectively reduce spending without violating the First Amendment.

Similarly, increasing the House's size would improve minority representation while avoiding the thicket of racial redistricting. If districts were smaller, future legislators would find it far easier to construct "natural" seats around ethnic and racial communities.

Answers to some possible objections

Can this proposal work? I can already hear Jay Leno's monologue, mocking the logic of adding more sharks to the tank. But this reform would put the sharks on a leash -- one held by the citizenry. Increasing the number of representatives would make each vote more significant within each congressional race, thus necessarily deepening politicians' accountability to the people.

Other critics might complain that new legislators means new salaries and increased burden on the taxpayer. But our 90-year freeze on the number of congresspersons has hardly contained the cost of representation. As districts have grown, members of Congress have merely hired larger staffs to handle the load. (Between 1930 and 1999, the number of House employees grew from only 870 to a whopping 7,216). Adding representatives could be coupled by a freeze or even a cut on staff. After all, would you rather pay for more unresponsive 23-year-old staffers, or for a representative who might actually take your call?

Some may say this proposal will never pass. After all, why would representatives act to diminish their own power? However, the passage of this proposal is no less plausible than the passage of campaign-finance reform legislation -- which may cut even more profoundly against legislators' interests. And many Americans want such reform badly enough to base their
votes on it.

Finally, some may say the logistics of a larger Congress are unworkable. But why? Americans routinely plan operations requiring the coordination of thousands, from space missions to corporate takeovers to James Cameron's movies. Moreover, other national parliaments manage fine with broad memberships. The House of Commons has 651 members, even though England has only 59 million inhabitants. And the England's inhabitants undoubtedly appreciate having boroughs of 90,000 citizens, one-sixth the size of U.S. congressional seats. Plus, anyone who thinks congressional issues are decided through congressional debates must still be wearing a powdered wig and knickers.

So how big should Congress be? Let's leave that up for debate. Given the current population, the constitutional maximum is around 9,000. That's probably too big, but I believe 1,000 is perfectly workable. At the very minimum, we should return to the original system of apportionment, which allowed the number of legislators to grow with the population. This way, at least we won't continue our 90-year trend of widening the distance between politicians and the public.


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