Two May Not Be Better than One

Conclusion - The Great CompromiseA simple Google search inquiring “why do US state legislatures have two chambers” returns no sources providing convincing, rational reasons. Rather, reviewing a number of the results, one hears the words from grammar and high school civics course resonating that “bicameral bodies promote careful deliberation of legislation and offer checks and balances against hasty conclusions.”  Such responses essentially define the term “platitude.” Other results tend to rely upon generic originalism of bicameralism, tracing to the British Parliament with one chamber – Lords – to represent upper classes and another – Commons – to represent other classes.

The US Congress became a standard model for state legislatures to emulate, actually duplicate, very often mirroring a smaller upper chamber – a Senate – of individuals elected for longer terms and a lower larger chamber of individuals elected for shorter terms in proportion to the population. That proportion is determined by the decennial census. The model persisted and endured for more than a century and a half producing through its evolution institutions that bore no or little resemblance to fair representation of electorates and residents.

Prior to several decisions of the Warren Court in the 1960s (Reynolds v. Sims, 1964), states were unhindered in creating and maintaining legislative districts for state senators and representatives without regard to the size of the populations in those districts, i.e. without regard for any degree proportional representation. This vacuum led to disparities where some lower chamber districts ranged in population from 3 to 35,000; some upper chamber districts ranged from 600 to 127,000 residents.

Reynolds held that state legislative districts, under the Equal Protection clause of the Fourteenth Amendment, must be “roughly equal in population.” The decision, one of a series of three, gave rise to the “one person, one vote” principle. In his majority decision, Chief Justice Earl Warren said “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” In addition, the majority rejected the argument that states were permitted to base their apportionment structures upon the Constitution itself, which requires two senators from each state despite substantially unequal populations among the states.

The boundaries of Virginia’s 40 senatorial districts are . . . based upon the 2010 census, [as are] each of the 100 House districts represented in the General Assembly. . . . The enumerated populations are, however, in actuality undifferentiated, since one resident in a delegate’s district is  the same in a Senate district. The net effect is to have two legislative representatives in the General Assembly representing a single individual, with little to distinguish them but their titles. This phenomenon holds true for every state in the United States fielding a bicameral legislature (all but Nebraska).

At present, the boundaries of Virginia’s 40 senatorial districts are drawn to include 206,026 citizens based upon the 2010 census. Districts for delegates are drawn for 80,010 based upon the same census for each of the 100 districts represented in the General Assembly. The enumerated populations are, however, in actuality undifferentiated, since one resident in a delegate’s district is  the same in a Senate district. The net effect is to have two legislative representatives in the General Assembly representing a single individual, with little to distinguish them but their titles. This phenomenon holds true for every state in the United States fielding a bicameral legislature (all but Nebraska).

In most instances, the term of office for members in the two chambers is different, usually longer for those elected to the upper chamber. In the Commonwealth this is evidenced by a four-year term for senators with elections scheduled in odd-numbered years while delegates are elected for two-year terms in even-numbered years.

In 1937, Nebraska reformed its legislature to become unicameral under the leadership of US Senator George Norris, sometimes characterized as a New Deal Republican. The 143-member bicameral body shrunk to 43 senators (49 today due to population growth) and survives to the present as the sole unicameral state legislature. In the absence of persuasive theory, an assumption that 49 states maintain bicameral legislatures attributable to inertia is impossible to rebut.

Both Nebraska and Virginia have equal length session for their respective legislative bodies – 90 days in odd-numbered years and 60 in even-numbered ones, 45 days on average over a single year. The session lengths are indicative of the “part-time” or citizen legislator from colonial times. While both states provide an annual salary for legislators, both also compensate attendance at sessions with per diem allotments.

Due to the press of legislative necessity, particularly in recent years, Virginia has held an additional 4 special sessions since 2018. The aspiration for legislators as part-time officials has, over time, succumbed to the realities and demands of population growth and the complexities of governance, particularly as states function in the federal system. The ideal of part time has been lost to necessity and practicality to the extent that the National Conference reports that part time legislators spend “57 percent of a full time job on their legislative duties.”

While the press of legislative business and the demands of electorates for services has made the part time legislator more of an ideal than reality, economic forces have also squeezed the notion. The $15/hour minimum wage generates $30,000 per year for a 50 week period. That is for full time work.

In its recent session, Virginia’s General Assembly failed to pass legislation that would have barred the use of campaign funds for personal use. This is a sensible prohibition, the rule in 47 states, to curtail abuse. A bill to accomplish this objective, passed by the House 100-0, was killed in the 40-member Senate by voice vote of 40-0, meaning no recorded vote.

The payor public, on occasion, learns that some practice or another is scandalous or creates suspicion of self-dealing, or compromising expected integrity from public officeholders. In its recent session, Virginia’s General Assembly failed to pass legislation that would have barred the use of campaign funds for personal use. This is a sensible prohibition, the rule in 47 states, to curtail abuse. A bill, passed by the House 100-0, to accomplish this objective was killed in the 40 member Senate by voice vote meaning no recorded vote. Taxpayers, in effect, are not to reason why but simply stand by.

With all 100 House delegates favoring this relatively minor restriction, the Senate’s concurrence might have been seen to be a no-brainer. From one perspective it is precisely this type of insulated attitude that feeds distrust and discontent among an electorate. The members of the General Assembly live by a self-propelled and self-sponsored set of rules that often is at odds with the interests and wishes of those who vote for them. The mute ignoring of expectations from the electorate feeds an unspoken disquiet that, occasionally, erupts against the political party in power. If a remedy to this syndrome exists, it may have to occur in drastic and dramatic form.

Deforming the General Assembly into a unicameral body is one idea to close the gap in the dialogue between the governors and the governed. In the usual course of politics, the best argument for a unicameral Virginia legislature may be money. That is, the abuse of it as in campaign finance. The Commonwealth prides itself on the antiquated notion that its “part-time” legislators are a better reflection of the citizenry due to their part-time status. In a unicameral Virginia legislature, 100 representatives could be limited to three year terms capped by a maximum of 4 consecutive terms or for life to preserve the citizen legislator ideal. Lobbying by former legislators could be banned for a period of years or for life.

The existence of bicameral legislatures in 49 states is not evidence of their effectiveness or democratic purpose but, rather, of modelling that of the US Congress.

The existence of bicameral legislatures in 49 states is not evidence of their effectiveness or democratic purpose but, rather, of modelling that of the US Congress. States have no structural intrinsic jurisdictional distinctions and, for that reason, a unicameral legislature makes rational sense and would streamline the line of authority and contact between legislative governance and the governed.

The Commonwealth’s two types of state representatives are elected by the same constituency to serve in the confines of a unitary institution. There is, of course, no magical or ideal number of districts or representatives to constitute a state legislature. Moreover, modern transportation and communication capabilities have mitigated against any necessity for multiple state jurisdictions as Virginia’s virtual sessions have also demonstrated. Virtual sessions and term limits contribute substantially and significantly to sustaining the concept of citizen legislators.

Reforming Virginia’s General Assembly requires both chambers to agree upon the wording and content of a referendum to be submitted to the state’s electorate for approval to amend the Constitution. At present, Virginia’s senators will next be elected in 2023 for terms ending in 2027. The successor class of 40 elected in 2027 would term out in 2031. This schedule offers an opportunity of 7 years in which to implement a unicameral legislature of 100 to be elected in 2028 for three year terms ending in 2031.

Given the nearly six decades since Reynolds, it came as somewhat of a surprise that a recent editorial opinion of a major Virginia newspaper called for increasing the number of state legislators to accommodate the geographic size of one SW Virginia Senate district as a solution. Reynolds was clear that one size did not fit all.

 

 



Categories: CIVIL RIGHTS, elections, GERRYMANDERING, Issues, Local, National, politics, RULE OF LAW, SCOTUS, State, VOTING RIGHTS

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