By Joseph Brugellis, Legal Reporter
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Every two years, Americans head to the polls to select the candidate whom they wish to represent them in the US House of Representatives. The House consists of 435 voting members tasked with representing the constituents in their respective districts (“What is a Representative?”). This magic number of House seats was not chosen because of any specific modern necessity; rather, the House of Representatives is legally mandated to contain 435 seats pursuant to the Permanent Apportionment Act of 1929 (“How Your State Gets Its Seats”). This mandate on the number of congressional districts has remained stagnant despite the fact that the average population in each congressional district has nearly tripled from 280,675 persons in 1930 to more than 760,000 persons today (“Historical Apportionment Data”).
This phenomenon poses problems for our system of democracy. With so many Americans concentrated in one district, a congressperson will find greater difficulty in making meaningful connections with all of their constituents and facilitating effective service (Drutman et al. 2021). This creates incentives for representatives to listen exclusively to the most powerful or outspoken members of the district and simultaneously ignore the interests of everyone else (Kane et al. 2020). Some have argued that lifting the arbitrary cap on the number of congressional seats and thus expanding the House of Representatives is necessary to promote effective congressional representation and return the voice back to the people.
A brief historical background of the apportionment process will help illuminate the present dilemma. The US Constitution mandates that congressional reapportionment happen every decade following the census (U.S. Const. art. I, §2). Apart from mandating that each state be allocated at least one representative and that the population size for each district consists of 30,000 persons at minimum (U.S. Const. art. I, §2), the Constitution remains silent as to what apportionment formula must be adopted and how many total districts should exist. James Madison did originally propose an additional amendment to the Bill of Rights enshrining a House apportionment formula into the Constitution contingent upon national population growth, but the initiative came one state short of ratification (Kane et al. 2020).
For the first fifty years of the nation’s existence, congressional apportionment took place without prior selection of a fixed number of House seats (“Apportionment Historical Perspective”). Congress first utilized the so-called “Jefferson method” to allocate seats. Congress would first select a predetermined population-to-representative ratio (ex: 45,000:1) and then plug the individual state’s population into this ratio, which results in the number of representatives or seats in that state (Kane et al. 2020). Plugging a state population of 830,000 persons into this Jefferson formula would yield 18 House seats for this state after rounding from 18.44 to the nearest whole number that is lower than the quotient (Kane et al. 2020). In 1840, the House reapportioned using the Jefferson formula, but instead rounded the quotient upward if the decimal fraction is greater than one-half (“Apportionment Historical Perspective”). The first-ever cap on districts was set at 233 House seats in 1850, but it was ignored by Congress and thus the House grew to 386 seats by the dawn of the 20th century (Kane et al. 2020).
As the House grew to 435 seats after 1911, many in Congress began to question the merits of allowing the enlargement of the House to continue (“Apportionment Historical Perspective”). After the House failed to reapportion itself following the 1920 census thanks to contentious debate between rural and urban members over the size of Congress (“How Your State Gets Its Seats”), Congress eventually passed the Permanent Reapportionment Act of 1929 which sets a statutory cap of 435 seats in the House. This statutory cap is still in effect more than ninety years later.
Capping the House of Representatives at 435 seats even as the nation’s population has significantly increased over the past decades inadvertently grants residents of certain states disproportionate overrepresentation in Congress compared with others. While districts within a state are legally required to have a roughly equal population size (“Wesberry v. Sanders”), the same principle does not apply when comparing districts from separate states. This can lead to residents of a state having greater individual congressional representation than those in another state. For example, the state of Delaware contains only one at-large congressional district encompassing approximately one million residents (“Delaware Population Facts”). The state of Wyoming also has an at-large congressional district, but it represents a population of only 580,000 residents (Skelley 2021). Even though both states have one district, each individual Wyoming resident is disproportionately overrepresented in the House compared with each individual in Delaware under the current apportionment system.
Many political scientists and others have increasingly advocated for the lifting of the cap on the House to alleviate this overrepresentation problem. Taking a global perspective, the average population per representative district in the United States as of 2020–761,169 persons– is abnormally large compared with other similar representative districts in nations like the UK and Japan (Skelley 2021). Increasing the number of seats in the House of Representatives allows for a decrease in the average number of residents per congressional district, thereby affording the opportunity for representatives to build closer connections with each individual constituent he or she is tasked with representing in Congress.
But what would such an expansion actually look like? Several different methods and theories have been proposed to effectuate a possible enlargement of the House.
One such proposal is known as the Wyoming Rule. The Wyoming Rule would allow for the addition of new House seats so that the ratio between a representative and the number of individual constituents within any given district would be equivalent to “that of the least populous state”, which is currently Wyoming (Drutman et al. 2021). Since Wyoming’s at-large congressional district contains around 576,000 constituents per the 2020 census (“Wyoming Population Facts”), congressional seats would be added to the House of Representatives to ensure each congressional district would consist of a roughly equivalent number. The House would increase to around 574 seats to accommodate this rule (Drutman et al. 2021). Critics of the Wyoming Rule point out that such a rule can lead to chaos if the number of House seats changes dramatically every decade due to a rapid increase or decrease in the population of the smallest state (Drutman et al. 2021).
Another possible blueprint for House expansion is the Cube Root Rule. The Cube Root Rule is based on the observation that the size of the representative body of a country is roughly equivalent to the cube root of the country’s population at large (Kane et al. 2020). The population of the US is around 331 million people; therefore, the cube root is approximately 692. The House would therefore be expanded to 692 seats. Those opposed to the adoption of this rule point out that the number of constituents assigned per congressional district will invariably increase as the nation’s population grows, which seemingly defeats the purpose of expanding the House to make representation more efficient.
Members of Congress have also begun to take an interest in possibly expanding their own workplace. Representative Earl Blumenauer of Oregon recently introduced the REAL House Act in January 2023. The REAL House Act would increase the size of the House from 435 to 585 seats after the 2030 census (“REAL House Act Fact Sheet”). This 149-seat increase represents the 149 times that states were forced to lose a congressional seat due to population shifts between 1929 and the present day. As compensation for this loss, the bill chooses to expand the House as a whole by adding 149 new seats (“REAL House Act Fact Sheet”). This proposed bill, however, is not perfect. What happens when the nation eventually grows so large that 585 House seats become ineffective at ensuring proper representation? Once the Nation’s population eventually grows to such a size, Congress would have to again step in and propose another solution.
Expanding the House by lifting the 1929 artificial cap on congressional seats represents an innovative attempt to correct the increasingly undemocratic relationship between the representative and their constituents. The proposals above all share the same problem: they lack any mechanism designed to prevent any future complications that could occur after the hypothetical implementation of the expansion proposal. If Congress eventually chooses to welcome an enlargement of the representative body, it must fashion an apportionment scheme that will actually promote the benefits of democratic representation in the long term.
Joseph Brugellis is a freshman from New Hyde Park, NY, on Long Island who intends to double-major in history and philosophy, politics, and law. After graduation, Joseph plans to go onto law school and hopes to one day be appointed as a federal judge. Joseph is passionate about the American judicial branch and is deeply interested in how different interpretative philosophies held by judges shape constitutional law. During summer 2022, Joseph worked as an intern in the office of state Senator Anna M. Kaplan. In his free time, Joseph enjoys reading, listening to music, and exploring nature.
“Apportionment Historical Perspective.” 2021. United States Census Bureau, November 22. www.census.gov/topics/public-sector/congressional-apportionment/about/historical-perspective.html.
“Delaware Population Facts.” QuickFacts, United States Census Bureau. www.census.gov/quickfacts/DE.
Drutman, Lee et al. 2021. “The Case for Enlarging the House of Representatives.” American Academy of Arts and Sciences. www.amacad.org/sites/default/files/publication/downloads/2021_Enlarging-the-House.pdf.
“Historical Apportionment Data (1910-2020).” 2021. United States Census Bureau, April 26. www.census.gov/data/tables/time-series/dec/apportionment-data-text.html.
“How Your State Gets Its Seats.” U.S. Capitol Visitor Center. www.visitthecapitol.gov/sites/default/files/documents/resources-and-activities/CVC_HS_ActivitySheets_CongApportionment.pdf.
Kane, Caroline et al. 2020. “Why the House of Representatives Must Be Expanded and How Today’s Congress Can Make It Happen.” Democracy and the Constitution Clinic, Fordham University School of Law, January. www.fordham.edu/download/downloads/id/14402/Why_the_House_Must_Be_Expanded___Democracy_Clinic.pdf.
“REAL House Act Fact Sheet.” 2023. Congressman Earl Blumenauer, Third District of Oregon, United States House of Representatives. blumenauer.house.gov/sites/evo-subsites/blumenauer.house.gov/files/evo-media-document/real-house-act-one-pager.pdf.
Skelley, Geoffrey. 2021. “How The House Got Stuck At 435 Seats.” FiveThirtyEight, August 12. fivethirtyeight.com/features/how-the-house-got-stuck-at-435-seats/.
“Wesberry v. Sanders.” Oyez. www.oyez.org/cases/1963/22.
“What is a Representative?” United States House of Representatives. www.house.gov/the-house-explained.
“Wyoming Population Facts.” QuickFacts, United States Census Bureau. www.census.gov/quickfacts/WY.
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