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The Founders Have a Fix For the Electoral College and a Better House

With more and smaller districts blunting the impact of partisan gerrymandering and having members work from their home districts, more responsive to local issues and fewer constituents, less imposed upon by lobbyists, less shackled to always dialing for dollars, working longer weeks and making our selection of president more fair, there’s plenty of compelling reasons to adopt the principles of proportional representation set forth by our Founding Fathers.

With the coronavirus forcing us to evolve new ways of conducting old business, it’s well past time to change the way we run our Congress. The emergency has brought into relief the insanity of a 21st century lawmaking body that cannot conduct business electronically, but even before COVID-19 we allowed our lawmakers a lax three-day work week to accommodate their taxpayer-funded flights home every weekend.

Imagine instead a House of Representatives that works remotely. Imagine your member of Congress, working five days a week from their office in your district. Imagine not having to fly to Washington DC to visit your representative or waiting for their scheduled town hall meetings (if any) in your district to tell them how you feel about your favorite issue. Imagine special interest lobbyists having to be the ones to fly to your district to visit your representative.

Sound good? OK, let’s take it further.

Imagine that instead of a district with half-a-million to almost a million citizens to represent, your representative, working from his or her home district, was representing just 50,000 citizens like you.

Imagine your representative getting 500 letters for your issue, knowing that’s 1 percent of his or her constituents, instead of 500 letters (on average) representing less than 1-in-1,400 constituents.

Imagine your representative only having to fundraise for an election with 50,000 potential voters instead of the average of 710,000.

Imagine even further that as a result of this overhaul of Congress, instead of Vermonters and Wyomingites having almost four times the vote by population in the Electoral College over who should become President of the United States as Californians or Texans, Vermonters and Wyomingites would have no better than a seventeen percent greater say than any other state in who becomes President.

Fortunately, the Founding Fathers have a fix for this in our original Bill of Rights.

Article the First – The Only Remaining Item on the Bill of Rights

In 1789, the Founders set to paper twelve amendments to be added to the US Constitution known as the Bill of Rights.

Twelve?

Yes. What you know as our Bill of Rights originally had twelve of them, but only the third through the twelfth were adopted. What we know as the First Amendment was actually Article the Third, the Second Amendment was Article the Fourth, and so on.

So what two articles did the Founders place even before our freedom of speech, press, religion, assembly, and petitioning, and before our right to keep and bear arms, and all the rest?

Article the Second resolved that “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

James Madison had proposed this amendment to prevent Congress from voting for its own pay raises, but he couldn’t get three-fourths of the new states to ratify it.

So, Articles the Third through Twelfth were ratified into our constitution, while the First and Second remained unratified.

But nothing about the proposal of all twelve articles mentioned anything about an expiration date. In the 1980s, a college student noticed this and embarked on a campaign to get states to ratify Article the Second. By 1992, he had succeeded and the 202-year-old proposal became our last amendment, the 27th.

Presumably, Article the First could be ratified the same way and become our 28th Amendment (or, hopefully, our 29th after the ratification of the ERA).

One Rep for 50,000 Citizens is the American Way

Article the First remains the only unfinished item on the Founders’ Bill of Rights. It states:

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the First from Transcription of the 1789 Joint Resolution of Congress Proposing 12 Amendments to the U.S. Constitution, National Archives

It’s quite wordy, so maybe representing it in code will illuminate:

FOR EACH Census
  IF Population / 30000 < 100
    THEN HOUSE = Population / 30000
    ELSE IF Population / 40000 < 200
      IF Population / 40000 < 100
        THEN MIN(HOUSE) = 100 AND MAX(HOUSE) = Population / 40000
        ELSE MIN(HOUSE) = 200 AND MAX(HOUSE) = Population / 50000
      END IF
   END IF
NEXT Census

When I first happened upon Article the First, I read it to mean that we would have one member of Congress for every 50,000 citizens. However, typing out the code helps me understand the Founders were keeping the House at one rep per 30,000 until it reached 100, one rep per 40,000 until it reached 200, and no more than one rep per 50,000 after it hits 200.

So, our current House, with 435 members, would not run afoul of the plain text of Article the First, even if it were in our Constitution.

However, there is precedent for the one-per-50,000 House. Our Congress reapportioned the House after our first five Censuses to match the one-per-50,000 cap. It wasn’t until the 1840 Census that congressional districts were allowed to grow beyond 50,000 to an average of 200,000 citizens per district by 1900. By 1930, Congress had set a hard limit of 435 members of the House, regardless of how large districts had to grow to meet that limit, so that today, the average district comprises 710,000 citizens and the largest one has almost a million.

Therefore, we don’t really need to ratify Article the First; indeed, doing so would not force Congress to change its size. We need instead to overturn the Permanent Apportionment Act of 1929 with a new law that mandates the one-per-50,000 House.

6,552 Members of Congress Isn’t as Large as You Think

Should we pass a one-per-50,000 House law, the Congress would grow to 6,552 members, with huge California packing a whopping 790 representatives and tiny Vermont and Wyoming getting just 14 representatives.

Obviously, these representatives all meeting in one building in Washington DC would be impossible. We’re talking a Congress the size of a small arena.

But meeting in an online virtual meeting space? There are online gaming platforms with millions of active players, all interacting in real time, with strong safeguards on data traffic and accuracy. There exists an ATM network with multiple providers all exchanging trillions in real-time currency transactions and online fees.

Creating a secure online environment for 6,552 users to conduct meetings, hearings, markups, amendments, and votes should be far easier to accomplish. (Teaching elderly members how to work online would be far more challenging, I’ll admit.)

Still, you may think a 6,552-member House would be struck with gridlock and unable to get work done… as compared to when, exactly? I rather think a Congress more attuned to 50,000 of their constituents in their home district where they work, freer from the constraints of fundraising and lobbyists, would get more work done.

Giving Large States a Fair Say in the Presidential Election

As it stands today, the nearly 40,000,000 people in California get 55 Electoral Votes for president. The nearly 600,000 people in Wyoming get 3 Electoral Votes for president.

That means there is about 1 EV for every 200,000 Wyomingites and about 1 EV for every 725,000 Californians. Put another way, one Wyomingite has 3.72 times more say in the presidential election than one Californian. It’s worse for Texans (Wyoming = 3.96x) and Floridians (3.84x).

But under the one-per-50,000 House, California swells to 792 EVs, Texas to 582 EVs, and Florida to 432 EVs, to Wyoming’s 14. Based on their populations, then, a voter in Wyoming has 1.17 times more say than a Californian, Texan, or Floridian.

This doesn’t completely solve the Electoral College. A popular vote winner could still lose; in fact, under the one-per-50,000 House, Donald Trump still wins the Electoral College over Hillary Clinton. But under the proposal, the Democrat would need to flip fewer states to blue to win in 2020.

Finally, more and smaller districts would blunt the impact of partisan gerrymandering. With that and having members work from their home districts, more responsive to local issues and fewer constituents, less imposed upon by lobbyists, less shackled to always dialing for dollars, working longer weeks and making our selection of president more fair, there’s plenty of compelling reasons to adopt the principles of proportional representation set forth by our Founding Fathers.