To get something like the equal representation in the House of Representatives intended by the Founding Fathers, our republic requires a permanent Committee for Fair Representation. This CFR has its work cut out for it: to do for fair representation in state and nation what the National Municipal League has been doing for some years in our local communities. In the absence of some continuing nonpartisan organization to focus public attention on the mounting evil of non- representative government, present inequalities will tend to multiply.
When the constitutional convention met in Philadelphia, the intent of the Founding Fathers as to representation in the federal: legislature was remarkably clear. Article I, Section 4 of the Constitution was written into the basic document precisely because the authors of the script feared that various interests in the separate states might so play around with the manner of electing the lower House as to make it a most unrepresentative body.
The specific article placed power in the hands of the federal legislature to regulate and alter the manner of electing members to the House.
This 'provision states that, "the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." The intent of this section was made perfectly clear by the debate on the subject. The central idea was stated by Madison: "The inequality in the legislatures of particular states would produce a like inequality in their representation in the national legislature," unless Congress could regulate the manner of the elections in the states.
South Carolina's Charles Cotesworth Pinckney pointed out that it was "absolutely necessary that Congress should have this superintending power, lest, by the intrigues of ruling factions in a state, the members of the House of Representatives should not really represent the people of the state." In the earlier years of our Republic, Congress used this constitutional power to legislate on the subject of electing delegations to the House of Representatives.
In 1842, Congress legislated that each member of the House shall come from one district. This was to offset the tendency prevalent among the smaller states to elect all Representatives on an at-large basis. This act also provided that districts be of contiguous territory to prevent the creation of districts scattered all over a state. (By the way, one Ohio district is at present non-contiguous, with a piece of the district planted in the middle of an altogether separate district.)
In 1872, Congress legislated that each district shall contain "as nearly as practicable an equal number of inhabitants."
In 1901, it was further provided that districts be not only contiguous but also "compact"—to place some rule of reason on the gerrymander.
In 1911, all provisions for contiguity, compactness and equality were repeated.
In a Reapportionment Act of 1929, none of the aforementioned qualifications was included and it has been interpreted to, mean that no limitations exist. Thus, there arc representatives presently chosen at large, from non-contiguous districts, from non-compact districts, from unequal districts.
Despite the early body of legislation, it must be noted —in the words of Justice Frankfurter—that "throughout our history, whatever may have been the controlling Apportionment Act, the most glaring disparities have prevailed as to the contours and the population of districts. . . . "
The basic reason for these disparities, despite legislation, has been the failure to enforce whatever legislation existed. The failure arises from the fact that enforcement has depended upon the initiative of political parties and politicians, many or most of whom are— in one way or another—beneficiaries of the disparities.
Political leaders, even those in the minority position, are loath to insist on systems of fair representation. A gerrymander, perpetrated by a majority party to cut down the representation of a minority party, will often tend to dump all the votes of a minority party in a few select districts. This system may cut down minority voice in the legislature but it will simultaneously create "safe" districts for the minority. These one-party districts give inordinate power to the party bosses in the "safe" district. These bosses know that control of the nominating machinery is tantamount to control of the election. These bosses can, by control of the nomination, name obedient and servile public officials. These professional politicians can rarely be counted on to make a fight against the system of unrepresentative government.
THE Supreme Court, or any state court, is hardly in a position to establish equity. Courts have occasionally ruled certain reapportionment and redistricting acts as unconstitutional. But to do so merely negates an act and does not create a fair system. In the absence of an act, the election must take place on an at-large basis or revert to the former basis, already made obsolete by shifts in population. Aware of its impotence in the matter, the courts have tended to keep hands off and to put the responsibility up to the state legislature.
The state legislature, of course, is the very last place to find justice since it is generally the prime culprit.
In some states, even a constitutional convention would be foredoomed to failure since these convention delegates are chosen on the same disparate basis as the representatives to the state legislature.
In short, in our complicated system of checks and balances there is nothing to check the growth of unrepresentative government. The great check was Article I, Section 4 giving Congress the power to legislate on the manner of electing Representatives. In the 82nd Congress, Representative Celler proposed a measure requiring the creation of districts with compactness, contiguity and equality. The provision for equality would allow a 15-percent variation from the norm.
What the Celler proposal lacked was public interest and support. While millions of dollars are poured into campaigns to win a handful of Congressional seats by some party or interest group, virtually no money is spent to redistrict and reapportion our Congress to get representative government. On the state level, there is the same kind of profound apathy except in those rare cases where a monstrous gerrymander is conceived, as in Massachusetts this year, and where some great organ of public opinion, like the Christian Science Monitor, this year, voices its loud and continued protest.
A national Committee for Fair Representation is presently a crying need to rescue and revive the concept of representative government in the United States. This continuing committee, composed of respected names in our national; community, cutting across party lines, could with a limited staff and some voluntary legal assistance do the following:
1. Research—The CFR could keep a running file on the state of representative government in the 48 states and in the national legislature. It would be a source for academicians, publicists and politicos who want to raise the issue of unfair administration and who wish to make proposals for fair representation.
2. Education—The CFR could educate the American people on the extent and character of the evil, on ways to combat the danger. This could be done through booklets, leaflets, newsletters, suggested material for editorials and news stories. The subject of unfair representation could be raised as the high school and college debate subject of the year. Radio and TV forums might be arranged.
3. Questioning Candidates—In the same manner that the Citizens Union, the Rural Co-ops, the ADA and trade unions, the Auto Clubs, quiz candidates on their stands, concerning special subjects, the CFR could get candidates to commit themselves on the subject of proper representation. The results of these questionnaires could be made public for the guidance of the voter. Obviously, this would have to be done on a strictly non-partisan basis.
4. Propose and Back Legislation—Both the federal and state legislatures have the power—and the duty— to apportion and district in a fair way. The CFR could help draft legislation; it could dramatically oppose clearly unfair legislation; it could champion worthy, bills.
5. Constitutional Revision—Many state constitutions require basic revision in their clauses dealing with apportionment and districting. To get such constitutional amendments before the voters or before state constitutional conventions could be another job for a CFR.
6. Enforce Existing Constitutional Provisions—In the states, where the legislature bypasses or forgets its own constitution, the CFR could serve as a public prod to carry out the state constitutions.
7. Court Action—Where there are court cases to invalidate improper districting or to get proper districting, the CFR could submit briefs as a "friend of the Court."
The above proposals for action by a Committee for Fair Representation in America are, obviously, highly tentative. Undoubtedly other functions will be conceived; other approaches developed. What cannot be contested is the need for a CFR to act as a sort of national conscience on the matter of representative government.
This article originally ran in the July 5th, 1954, issue of the magazine.