Legislation introduced by Rep. Mark Walker (R-NC6).

Should the Senate be capped at 100 members, the way the House has been capped at 435 since 1929?

Context

Democrats increasingly call for Puerto Rico and the District of Columbia to become official U.S. states. With 3.1 million and 700 thousand American citizens respectively, their residents have no representation in the Senate or the House.

In November, Puerto Rico residents voted 52 percent for statehood, in a nonbinding referendum. In June, the House passed the Washington, D.C. Admission Act by 232–180, with no Republicans in favor and all but one Democrat — Rep. Collin Peterson (D-MN7) — in support.

The Constitution’s 17th Amendment requires the Senate “shall be composed of two Senators from each State.” Republicans say that adding Puerto Rico and/or the District of Columbia as states is just a partisan ploy to add more Democrats to the Senate, not to mention the House. (That said, Puerto Rico’s elected but nonvoting member of the House, Jenniffer González-Colón, is a Republican.)

What the constitutional amendment would do

A constitutional amendment proposal would limit the Senate to states that existed in 2019. In other words, it would block the seating of senators from potential future states Puerto Rico or the District of Columbia — or any other potential future states, for that matter.

That also means it would officially cap the Senate at 100 members. The House has been officially set at 435 members since the Permanent Apportionment Act of 1929, but while the Senate has remained at 100 members since 1959 because that was the last year a new state was added, the Senate has never had an official number of members like the House does.

This was introduced as a constitutional amendment, rather than as normal legislation, because it seeks to supersede the portions of the 17th Amendment; specifically, superseding the portion which says the Senate is composed of two senators from each state, with a new clause saying the Senate is composed of two senators from each state that existed in 2019.

It was introduced on September 29 as House Joint Resolution 97, by Rep. Mark Walker (R-NC6).

What supporters say

Supporters argue that the widespread Democratic support for new states during the Trump era, especially considering how previous pre-Trump proposals didn’t gain nearly as much Democratic support, merely reflects a partisan gambit to pass policies that existing voters don’t sufficiently support.

“From packing the Supreme Court to passing the disastrous Green New Deal, it’s no secret Joe Biden, Chuck Schumer and their Washington elites will do anything to reshape the political future of our nation — no matter the cost,” Rep. Walker said in a press release.

“Democrats’ blatant attempts to strategically manipulate and mold dark blue strongholds in their quest to achieve a Senate majority treats Americans as pawns in their pathetic chess game,” Rep. Walker continued. “There is a cap on the number of members in the House and the Senate should have the same to avoid political abuse and hostage-taking of our standards and norms.”

What opponents say

Opponents counter that places such as Puerto Rico and the District of Columbia currently experience taxation without full representation — exactly the type of oppression the American Revolutionary War was fought to end.

“The rights to vote, to be equally represented in the governments that make our own laws, and that elections are carried out fairly are the most fundamental and essential elements of democracy,” Commish. González-Colón said during a July congressional hearing. “I represent 89 percent of the inhabitants of the five territories of the United States … Those of us who live in the territories, live in jurisdictions that constitutionally does not have a vote in a government that dictates our national laws and that can, and has intervened, with local laws.”

“D.C. pays more federal taxes per capita than any state and pays more federal taxes than 22 states,” Rep. Eleanor Holmes Norton (D-DC0) said during another July congressional hearing. “D.C.’s population of 705,000 is larger than those of two states,… D.C.’s $15.5 billion budget is larger than those of 12 states… D.C. has a higher per capita personal income and gross domestic product than any state. Eighty-six percent of D.C. residents voted for statehood in 2016.”

Odds of passage

A constitutional amendment requires passage by two-thirds of both the House and Senate, plus three-quarters of state legislatures. And this one has a particularly long road ahead, considering it has not yet attracted any cosponsors.

It awaits a potential vote in the House Judiciary Committee.

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DS: Legislative proposals to make D.C. a state violate the Constitution in at least two ways.

Article I, Section 8 grants Congress the right to “exercise exclusive Legislation” over the “District” that is “the Seat of the Government of the United States.”

Congress cannot simply change the “Seat of the Government” into a state or delegate its power over the District to the government of a new state.

It took a constitutional amendment to give D.C. residents the ability to vote for president because they are not a state and Congress could not make them a state.

Ratified in 1961, the 23rd Amendment recognizes Congress’s authority to oversee the manner in which the District appoints electors to the Electoral College.

Congress cannot single-handedly eliminate the power this amendment grants only to Congress.

Article I would need to be amended, and the 23rd Amendment would need to be repealed for legislative efforts to be constitutional.

In Adams v. Clinton (2000), the D.C. Circuit Court of Appeals found that legislative efforts to allow for voting representation in Congress were unconstitutional.

The three judge panel made it clear that the Constitution would need to be amended in order for such changes to take place within the law.

Congress itself recognized this in 1977 with a constitutional amendment to grant D.C. representation—it failed to gain the approval of the states.

Constitutional questions aside, proponents pushing for D.C. statehood overlook the fact that D.C. residents are already well-represented.

The Founders reasoned that the whole Congress would represent the interests of the residents of the District of Columbia.

According to Justice Joseph Story, those who lived in the District “would receive with thankfulness such a blessing, since their own importance would be thereby increased, their interests subserved, and their rights be under the immediate protection of the representatives of the whole.”

This remains true today, especially in light of the fact that federal spending often benefits D.C. residents more than those living in the states, whose residents usually receive far less in federal funding per capita than D.C. residents.

In fact, seven of the 10 wealthiest counties in America surround Washington, D.C.

The interests of the residents of the District are already highly promoted, even perhaps at the expense of the rest of the country.

Furthermore, D.C. residents are represented by a second body, the Council of the District of Columbia.

With the passage of the District of Columbia Home Rule Act in 1973, Congress ceded a portion of its authority to govern local affairs to a city council.

The council is made up of 13 members and a mayor—each of which is an elected position.

Though the campaign to make the District of Columbia a state and grant it full congressional voting will lumber on, supporters should come to terms with the constitutional and practical impediments outlined above.

If proponents of D.C. statehood want to live in a state and not a district, they have some options that are very close by.