Monday, January 24, 2011

Reforming congress

Sandy Levinson

There is a very interesting op-ed in today's NYTimes on Congress's dereliction of duty in not raising the number of members of the House of Representatives in almost 100 years (!!). The average district is now over 700,000, and Delaware and Montana a single-district states with over 900,000 population. The "cube-root law" of districting, which suggests that representatives bodies should the cube root of the total population, would generate a House of around 676 members. The authors of the op-ed, Dalton Conley and Jacqueline Stevens, note that a House with the same average population as was the case when it became a 435-member entity following the admission of Arizona and New Mexico in 1912, would have about 1500 members. One might well believe that that is too many.

Another Times article, titled "While the House is Abuzz, Senate Hits Snooze Button," concludes by noting the unanticipated "alliance" between Socialist Rep. Victor Berger, who in 1911 proposed abolishing the Senate, described as an "obstructive and useless body," and Republican Rep. Michele Bachman, who apparently suggested last week that the House should propose the same thing. (It would take a constitutional amendment, of course, but only a "regular" amendment, since abolition wouldn't violatel the "equality" provision of Article V requires unanimity to amend.) Perhaps this is an illustration of the "stopped clocks are right twice a day" principle, but I hope that this suggestion of Rep. Bachman's is actually discussed rather than being dismissed as simply loony. To be sure, I presume that her abolitionist instincts were dormant in the last session, when Republican mad-dogs in the Senate were able to wreak havoc against a Democratic House. And, all things considered, I do believe, as I've said on many previous occasion, that the country is far too large and diverse to be governed effectively by only one legislative house. But none of this vitiates Berger's observation about the Senate we have (as against other Senates that might well be designed). No doubt most readers of Balkinization applaud the "obstructive" role the Senate will play against the mad-dog House, but "we" should recognize that such applause carries a real cost in legitimizing what has become an indefensible institution.

Incidentally, returning to the theme of the first paragraph, Larry Sabato, whose valuable book (available online for $11.79) proposes many specific constitutional changes, advocates increasing the size of the Senate as well as the House, and I think he's clearly correct. Even assuming the present alloction of power, I'd rather there be 200 senators (with Wyoming having four of them) than the present 100.


The average district is now over 700,000, and Delaware and Montana a single-district states with over 900,000 population.

If the average district population is about the same as the population of single digit states, the apportionment would appear to be correct.

I do not see how adding hundreds more Congress critters adds efficiency or any other positive attribute to the legislative process.

"[A]bolition wouldn't violate the 'equality' provision [that] Article V requires unanimity to amend."

Seems pretty implausible to me. The requirement that the Senate continue to exist seems at least as clearly presupposed by Article V as, say, a ban on non-public-use takings is by the 5A.

I was reading parts of the Clemons v US Dept of Commerce and US Bureau of Census decision in a 2009-2010 case which was from the northern district of MS appeals court, basically discounting the idea of complaint's contention concerning the obligate expansion of membership in the lower chamber of congress, the decision based upon reasoning similar to professor Levinson's post. I think the House might have more character if its clamor was reproportioned to match in loudness what the Senate manages to say politely in the ostensible voice of comity.

If we have 200 senators, well, that would only work with a new set of rules on how the Senate does business. But, I'm not sure if we need that many, even though I'd apportion them differently.

BTW, abolishing the Senate would seem to deprive equal suffrage akin to blowing up a home deprives one of a shower "in" said home. But, who knows. Better to go the UK route, and first amend the rule, THEN get rid of the Senate (or rather, the equal rule).

I agree with Chris. But at a minimum, if the Senate were abolished, every state ought to have the option to leave the Union. Only fair.

mls, have you seriously* thought out your proposed option? For example, if Colorado picked up the option, consider our loss at this Blog. And small population states might no longer receive subsidies by seceding. Perhaps you're in an 1861 state of mind, ready to celebrate the sesqui-centennial of the start of the Civil War.

By the Bybee (&$^%@#), I'm not suggesting increases in either the House or the Senate, although just thinking of resulting gerrymandering for House seat increases might lead to full employment for attorneys.

*(I don't think you're serious.)

I concur with Chris and Joe. Abolishing the Senate absent an amendment to Article V is probably unconstitutional.

Sandy, I wish you hadn't described Michele Backman as an "abolitionist" as we approach the sesqui-centennial of the start of the Civil War with its memories of the abolitionist movement of Wendell Phillips, Wm. Lloyd Garrison, et al. Bachman has been kindling an "uncivil" political war for several years as a congresswoman. While she described the Senate as an "obstructive and useless body," it is also self-descriptive.

I understand the Senate's "first day" continues with reports in today's WaPo (1/26/11) of certain minor rules changes being considered by both parties. This might end up as a sequel to "The Longest Day."

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