Malcolm E. Jewell - The Politics of Reapportionment

It is essential to liberty that the government in general should have a common interest with the people; so it is particularly essential, that the [House of Representatives] should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy, by which this dependence and sympathy can be effectually secured.

Federalist No. 52

James Madison, in Federalist No. 39, asked whether the plan of government reported by the Philadelphia Convention was strictly republican. No other form of government, Madison wrote, would be reconcilable with the genius of the people of America; with the fundamental principles of the revolution; or with that honourable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. A republic, he continued, is a form of government which derives all its powers directly or indirectly from the great body of the people. It is administered by persons holding their offices for a limited period. It is essential to such a government, that it be derived from the great body of the society (emphasis in original). The House of Representatives is elected immediately by the great body of the people. The two-year term for members of the House, Madison wrote, is equally conformable to the republican standard. Two years was a period within which human virtue can bear the temptations of power (Federalist No. 53). The idea of a professional politician was foreign to Madison and all of the Founders. Also foreign was the fact that malapportionment would assure that over 90 percent of House incumbents have been returned every election since 1976.

The aim of every political constitution is to obtain rulers with wisdom and virtue and to take the most effectual precautions for keeping them virtuous, whilst they continue to hold their public trust (Federalist No. 57). Elections are the means relied on by republican government and they must be frequent:

[T]he house of representatives is so constituted, as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there for ever to remain, unless a faithful discharge of their trust shall have established their title to a renewal of it. (emphasis added)

The rise of political partieswhich the Founders denigrated as factionshas distorted Madison's understanding. Voters today identify themselves as: 37 percent conservative; 37 percent moderate; and 22 percent liberal. Pollsters usually describe the country as center-right. The problem is, because of a political duopoly, the two parties control the government. The independents, almost 40 percent of the people, are not represented.

Malcolm Jewell's wonderful 1962 book, The Politics of Reapportionment, established the factual necessity for our current one man-one vote rule, which the Supreme Court adopted. We have that rule today, but because of political malapportionment, the system is not yet fair. It does not induce in House members an habitual recollection of their dependence on the people.

Madison's idea was that the voters would pick their representatives. Today, however, because of agreements between the two political parties, the representatives pick their voters. The two major parties, as Judge Richard Posner writes, exert virtually complete control over American government. The two parties appear to be bitter opponents but in fact are what economists call a duopoly: they share a market and both enjoy profits in excess of those available in a competitive system. They both act to prevent any new competitor from entering the market. Our political duopolists see plenty of profit as long as they prevent any third party from rising. The two parties limit a voter's choice to one party or the other; elections simply shift power between them. They have, with the help of the Supreme Court, denied the states the right to limit the terms of their congressmen (U.S. Term Limits v. Thornton, 1995).

The problem is that the parties do an awful job of governing. They have involved us in a series of ill-conceived warsVietnam, the Balkans, Iraq, and Afghanistan. They have spent money so irresponsibly they have created a perpetual debt. They agree to a policy of open borders, encouraging illegal immigrationthe Democrats to get voters, the Republicans to get cheap workers. The public, when it is totally disgusted with one party, has no choice but to elect the other one.

What is the source of the duopoly's power? Political apportionment of the House of Representatives. Most of the 435 members of the House never face serious election contests. House districts, which represented roughly 40,000 people in the first Congress, have ballooned to over 700,000. That is too large for much personal contact. Incumbents, nonetheless, have a natural advantage in an electiona high rate of return is to be expected. But not as high as what we have experienced. In House elections all the way back to 1964, the lowest rate of return of House members was 82 percent (1970); the highest was 98 percent (1986, 1988, 1998 and 2004). In the Senate, which cannot be gerrymandered, incumbents are also favored, but nothing like the House. For example, in 1980, the year of the Reagan Revolution, only 55 percent of senators up for re-election were returned while 91 percent of the House was returned. In 1978, 60 percent of senators were returned; in 1976, 64 percent. In 2006, 94 percent of the House was returned as opposed to 79 percent of the Senate. In the nineteenth century, before the duopoly was in place, only 50 to 60 percent of incumbent congressmen were returned. Congressmen, on average, then served only about five years (Sabato,