The People's House

The Second Draft, Part 2

The last essay argued that the working constitution has drifted from the written one, and nowhere has it drifted further than in the chamber that was supposed to sit closest to the people. The House of Representatives was the founding’s great concession to popular government, the one branch elected directly and often, sized to track the population, built so that an ordinary citizen could know his representative and hold him to account. It is now the opposite of that in almost every particular, and putting the people back into the people’s house is where a second draft has to begin its actual work.

Start with the size, because it is the root of nearly everything else. The Constitution fixed no number for the House. It set a floor, at least one representative per state, and a ceiling, no more than one per thirty thousand people, and left Congress to fill in the rest after each census. For most of the country’s history Congress did, and the House grew with the nation. Then, after the 1920 census, it stopped. A law in 1929 froze the chamber at 435, where it has sat ever since, while the population it represents has more than tripled. A district that once held thirty thousand people now holds more than seven hundred thousand. The chamber the founders sized so a member could plausibly know the people he spoke for has become a body in which each member speaks, in practice, for a midsize city of strangers.

This is not a small administrative detail. It is the single largest unacknowledged change to the structure of American government, and the First Congress saw it coming. The very first amendment it proposed, ahead of speech and arms and all the rest, was a formula to keep the House growing with the population so it would never drift out of reach of the people. That amendment was never ratified, and we have lived for a century with the consequence its authors feared.

The second draft does what the First Congress tried to do, and writes the growth into the document so no later Congress can freeze it again. The rule it uses is the cube root of the number of citizens, a figure that for a country this size yields a House of around seven hundred members rather than today’s four hundred thirty-five. The choice of the cube root is not arbitrary. It tracks, roughly, the size legislatures around the world actually settle on relative to their populations, and it threads the needle Madison named in Federalist 55, large enough that a member knows his constituents, small enough that the body can still deliberate. It grows, but slowly, by the cube root rather than in lockstep, so the House enlarges as the country does without ever swelling into a mob.

The gains from a House even half again its current size are larger than they look. Districts shrink, so a representative is closer to the people he serves and can actually be reached and known by them. Campaigns get cheaper and more local, which loosens the grip of national money and national media and gives a candidate without a famous name or a fortune a real chance. And a larger chamber is harder to run from the center, harder for leadership to whip and harder for a lobby to capture, because there are simply more independent members who must be persuaded. The objection is that a bigger House is a more unwieldy one, slower and noisier and harder to lead. That is true, and it is mostly the point. A legislature that is easy to lead from the top is a legislature that has stopped being hard to capture from the outside. The friction a larger House adds is friction against exactly the concentration this whole argument is set against.

The size sets how many representatives there are. The next question is how they are divided among the states, and here the second draft makes a change small in words and large in effect. It apportions the House by the number of citizens, not the number of residents.

Today the census counts everyone present, citizen or not, and representation is divided on that total. The result is that power in the House, and through it in the Electoral College, flows to places partly for the non-citizens who live there. A state with a large non-citizen population gains seats that its citizens then fill and control, which means a citizen’s share of the national legislature depends, in part, on how many people who cannot vote happen to live around him. A strange way to apportion the instrument of self-government, and why correcting it is not the cruelty it will be called needs to be said plainly.

Representation is not the same thing as rights. Non-citizens within the country keep every protection a person is owed, the due process, the equal protection of the laws, the basic dignities that do not depend on a passport, and nothing here touches any of it. But the House is the citizens’ instrument, the lever by which the people who hold the franchise govern themselves, and it should be apportioned by the people who hold it. Counting toward representation those who cannot vote does not enfranchise them. It only shifts weight among citizens, handing more to those who live near large non-citizen populations and less to those who do not, for no principled reason at all. Apportioning by citizens is not a claim that non-citizens do not matter. It is a recognition that the people’s house belongs to the body of citizens in whose name it acts, and that dividing up its representation should be measured by the people doing the governing.

Then there is the question of who fills the seats, and for how long. The founders imagined the House as a body of citizen-legislators, people who would serve a while and return to live under the laws they had made. What we have instead is a profession, with members who arrive young and leave in a coffin, who spend thirty and forty and fifty years in a chamber never meant to hold a career. The second draft ends that with two limits. No one may be elected to the House more than three times, and no one may be elected to it after the age of seventy.

The term limit restores rotation. Twelve years is long enough to learn the work and short enough that the work does not become the man, and a House that turns over is a House harder for any faction to settle into and own. The age limit is blunter and will be more resented, but it answers something real, a gerontocracy clinging to power into its eighties and nineties, long past representing a country most of whose people are decades younger.

The familiar objection to term limits is that they hand power to the unelected, to the staff and the lobbyists who keep the institutional memory that rotating members lack. A real cost, and a smaller one than the disease it treats. The cure for lobbyists holding the knowledge is not a permanent class of legislators but a House large enough, and citizen enough, that no single member or staffer is indispensable, and a chamber that remembers it is meant to be filled by the people rather than by a guild.

One more change to how the House is held, and it cuts against an instinct, so it needs defending. The second draft gives representatives a four-year term, not the current two. The two-year term was meant to keep the House responsive, on a short leash, answerable almost constantly. In practice it produced the opposite. A member with two years in office began running for the next term the day he won the last, spends his days raising money and his evenings on the phones, and can never quite govern because he is always campaigning. Four years lets a representative actually do the job for a stretch before facing the voters again, and the three-term cap means the longer term buys no extra entrenchment, because the total time a person may serve is fixed regardless. The trade is real, less frequent accountability for less permanent campaigning, and on the evidence of what the two-year leash actually produced, it is a trade worth making. A House that governs for three years and answers in the fourth is nearer the deliberative people’s chamber the founders wanted than a House that does nothing but run.

Last, the second draft gives the House the initiative. Every bill begins there, in the chamber closest to the people, and the Senate’s role is to revise and return rather than to originate. The first draft already did this for money bills, on the principle that the power to tax should start with the body most directly answerable to those taxed. The second draft extends the principle to all legislation, for the same reason. If one chamber is going to lead, it should be the one the people elect directly and often, at a scale where they can still be heard. The states’ chamber checks and refines. The people’s chamber proposes. That is the right order for a government that claims to rest on the consent of the governed.

Put the changes together and they point one direction. A House sized to the people instead of frozen against them. Apportioned by the citizens who hold the vote. Filled by people who serve and leave. Freed from the permanent campaign so it can actually govern. Holding the initiative so the chamber nearest the people proposes the laws they live under. None of it is radical in the sense the word usually carries. Every piece is an effort to make the House again what it was drawn to be, the part of the government a citizen could see himself in. That it now takes a second draft to restore the first draft’s own design is the measure of how far the working constitution has drifted, and the reason the drift is worth correcting branch by branch. The next branch is the one the first draft handed to the states, and then took away.