Michael Bindner's DC Blog

In this blog, I discuss DC politics and other issues of import to local government. I have posted several essays from my book, Musings from the Christian Left, on blog entreies dated June 2004.

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Location: Alexandria, Virginia, United States

Wednesday, May 13, 2009

Comments for the Record: The History Of The District Of Columbia And Its Impact On The Attainment Of Voting Rights And Statehood

Chairman Brown,

Thank you for the opportunity to submit comments for the record. For the District to know where it is going, it must have a clear understanding of its often troubled past. Since Faith Dane and Jude Crannitch introduced me to the Statehood movement in 1993, when we were marching every week to the House of Representatives to force a vote on the Statehood Bill, I have been an active participant in the movement. I welcome the opportunity to share some of what I have learned in the past 15 years.

From my unique perch in the Administration, I had the opportunity to bring a draft of Jamin Raskin’s article on voting rights to the attention of the Office of the Corporation Counsel. This article became the basis for the voting rights lawsuit, Alexander v. Daley. One of the details put forth in that article is evidence that the story of the “Insult in Philadelphia” upon which the District’s special relationship with Congress is founded was an early product of spin control. Congress justifies its meddling in District of Columbia affairs by an odd bit of history, the insult in Philadelphia. The Continental Congress was meeting in Independence Hall, while the Pennsylvania legislature was meeting upstairs. Revolutionary War veterans rallied outside to demand back pay. Congressional apologists like to assert that these soldiers were in rebellion against Congress. This is in fact a fairy tale. The veterans were demanding their pay from the state legislature, since they knew the Continental Congress had no money to give. Later on, in what amounts to a publicity stunt that was possibly arranged by one of their former generals, Alexander Hamilton, the soldiers did in fact jeer the Congress. The real insult to Congress was the fact that everyone knew that it had no power (the Emperor was without clothes).

Given the history of the District clause, one can argue that congressional power over the District is no longer necessary. Concerns over physical security as provided by a state have been overcome. When the District of Columbia was established, there may have been some question as to the vulnerability of Congress vis-à-vis the states. Over the last 200 years, the Federal government has become a huge and powerful bureaucracy, greatly overshadowing even the largest of states. Further, the military and police personnel directly at the service of the Federal government number in the millions, and are well equipped and armed like in no time in history. There no legitimate concerns over the physical safety and prestige of the national legislature that could justify the continued rule of Congress over the District of Columbia. Those concerns having to do with international terrorism are not unique to the national capital, and can be dealt with without continued domination of all of the District’s residents.

The justification for physical security from insult by people of a state has been overcome. The passage of the First Amendment of the Constitution has given protection to insulting speech directed at the Congress. The promise to adopt a Bill of Rights secured the ratification of the Constitution, modifying the intent of every provision contained therein. It must be noted that the Capitol Police have assisted District residents in the exercise of their rights to speak and assemble on congressional grounds to engage in such speech. Therefore, this justification for continued congressional authority over the District of Columbia has been overcome. To avoid insult, Congress must act in a way not to attract it, by giving free people their rights.

The U.S. Government asserts that the relationship of the Congress to the District is like that of a state legislature to a locality. This theory has been set forth in a variety of cases before the Supreme Court, and is also now echoed in Section 601 of the District of Columbia Home Rule Act. The constitutional electors of the District of Columbia ratified the Home Rule Act, which is the only constitution for the District of Columbia Government. Section 704 of the Home Rule Act provided for acceptance or rejection of the Home Rule Charter by the electors of the District of Columbia. The Act acts not only as the charter for the municipal government, but also as the basic law or state constitution.

District Residents are entitled to Equal Protection of Law, with these rights trumping the powers of Congress to act as the supreme lawgivers created under the District Clause. In Bolling v. Sharpe, the U.S. Supreme Court made it clear that the 5th Amendment extends due process and equal protection rights to citizens of the District of the same order as those granted to citizens of the states. In Bolling, which was decided with Brown v. Board of Education, the federal government asserted that it had the right to segregate schools because the Fourteenth Amendment rights to due process did not apply to the District. The Supreme Court rejected this contention, which applies to all constitutional rights, not merely the right to integrated schools.
In reserving the power to unilaterally amend its state constitution, the Congress has exceeded its presumed authority as state legislature. No other state legislature in the United States may enact changes to its state constitution, which in the District of Columbia is the Home Rule Charter, without enacting identical language in a subsequent session preceded by an intervening election or without a ratification vote of the electors of that state. Because none of the members of the state legislature for the District of Columbia, the Congress of the United States, are elected by the citizens of said District, the only viable method of ratification is by referendum. Any amendment to the Home Rule Charter that has not been presented to D.C. voters is enacted in violation of the equal protection rights of its citizens to approve or reject such matters, many of which are plainly against their interests, especially with regard to District finances.

Congress has also exceeded its authority as a state legislature by operating outside of a constitution ratified by the people of that state, in this case, the District of Columbia. State legislatures may charter localities because they operate under constitutions ratified by the people of the state. The people of the District of Columbia has no such constitution providing the people with their sovereign right over the state government, unlike every other American in a state or a territory which has ratified, or chosen not to ratify, a state constitution.

All amendments to the Home Rule Charter are void until such time as they are presented to the constitutional electors of the District of Columbia. Such a remedy would provide the people of the District of Columbia with the full protection entitled to them as citizens of the United States. The restriction on the power of Congress applies only to those cases where it usurps the constitutional authority rightly held by the people of the District of Columbia. It does not invalidate exclusive legislative authority over the District, but only “state” constitutional authority, which under a republican form of government resides only with the people.

There have been attempts to overturn the status quo by litigation, although these were not successful. No one has ever sued on just the right to vote on the District Constitution. While District residents might sue in the future, the fact that prior amendments were never challenged makes doing so a dicey proposition. The other way to protect the rights of D.C. citizens is by amending the Home Rule Act.

Section 303 of the Home Rule Act, which provides for amendments, is not listed as unamendable by referendum, so it is fair game for a Charter referendum initiated by the Council. Such a referendum is akin to a declaration of independence by DC voters. It gains national attention to the rights of DC citizens, as do the attempts in Congress to enact a legislative veto, the filibuster blocking such a veto, the subsequent legal challenge, and any attempts to circumvent the amendment through the budget process. Such attention raises the visibility of the plight of District residents.

Some object that the Home Rule Charter is hardy a constitution, and is in fact colonial legislation. Yet, however it was drafted; DC voters (who could have rejected it) accepted it. It can, and most likely should be amended wherever possible by provisions of the New Columbia Constitution ratified by District voters in 1982. The Council has the right to propose such amendments (as the charter amendments cannot be submitted by initiative), including those provisions allowing amendment initiatives.

If the Council were to propose such an amendment, it would likely lead to a court challenge. Such a challenge forces litigation of the rights of District residents to a republican form of government in a way that the Supreme Court could not dodge, as they dodged such a discussion in the appeal in Adams v. Bush., also known as the 20 Citizens lawsuit. If the District wins the challenge, Congress is required to abide by the law and submit the amendment to the voters. After it had been litigated, the Courts must side with any challenge by District residents to any “budgetary riders” or other legislation amending or revoking the Charter without a vote by District residents.

The other way to enact such provisions is to do so congressionally as part of the push for voting rights. D.C. voters are on record as supporting statehood for the District of Columbia. Voting rights are a step less than full self-determination. In order to make voting rights acceptable to the population, some form of enhanced self-determination is necessary. Requiring that D.C. residents ratify any changes to their own constitution would be such a compromise. If Congress enacted a charter amendment requiring ratification of its actions, a challenge is also likely, although the case is easier for DC to win.

Does such a provision sidetrack the movement for DC Statehood? I believe it has the opposite effect; as such a provision takes away Congress’ fun. Given the effort required to run roughshod over the rights of DC residents, Congress most would likely end its resistance to statehood for New Columbia.

Another action which the District can take unilaterally is to withdraw its consent to the Congressional presence by either a citizen initiative or council sponsored referendum to expel the Congress from the District of Columbia. While such an action would not be binding, it would certainly raise awareness of the dysfunctional nature of the federal presence. It could also be argued that the original statehood initiative was a vote to expel Congress from most of the District. Here is some sample language for you and the committee to consider:

Whereas the Constitution provides for the creation of a national capital and federal enclaves by cession of territory from the various states, and

Whereas the District of Columbia was created by cession of territory from the State of Maryland and the Commonwealth of Virginia, and

Whereas the passage of the Organic Act in 1801 was ruled to sever all ties between the District of Columbia and its donating states, and

Whereas the residents of the City of Alexandria and Alexandria (now Arlington) County sought and received readmission to the Commonwealth of Virginia in 1847, and

Whereas political rights have been granted to the residents of all other federal enclaves, and

Whereas the citizens of the District of Columbia have been denied political rights to both self-government and representation in the Congress of the United States, and

Whereas, under Alexander v. Daley, the Organic Act's separation of the District from Maryland is found to be still in force, leaving no state with the authority to withdraw its consent for the cession of land for the creation of a national capital,

Therefore, the Citizens of the District of Columbia, by this instrument, do hereby withdraw their consent for the location of the national capital within its boundaries.

The beauty of this action if undertaken as an initiative is that the BOEE has to deny it ballot access, or if it grants it, the United States is sure to challenge it (and Council support of such a measure will assure it makes the news). The challenge to access will When be litigated before anyone has to get either cold or hot circulating a petition. While a Council sponsored referendum will not require either signatures or BOEE consent, it will still likely draw a federal action challenging its placement on the ballot.

The goal of such an effort is obviously not to expel Congress. What you do accomplish is forcing the United States and then the Courts to state that D.C. residents are not sovereign. A court case will attract media attention. Such a case is far easier to understand than Adams v. Clinton and, because there is an event to be litigated, it is an issue that the courts cannot dodge.

It may not come to this, however, as the election of Barack Obama to the Presidency, the election of Al Franken to the Senate and the conversion of Arlen Specter to the Democratic Party brings the District that it though was out of reach – 60 Democratic votes. This margin allows Statehood to come to a vote in the Senate, provided that the Democrats are united. Not even the National Rifle Association could stop such a vote, because theoretically states cannot be dictated to once statehood has been achieved. The only major obstacle is the fact that four of the sixty Democratic votes needed are from Maryland and Virginia, which means that the Non-Resident Income Tax Issue and District finances in general must be dealt with.

The funding of education is an issue which, if handled, would help remove the need for a non-resident income tax. The issue arises because former District residents now residing in Prince Georges County, Maryland continue to enroll their children in District of Columbia Schools. Meanwhile, some Ward 3 parents leave the District when their children reach Junior High or High School age in order to send their children to Montgomery County Schools. Without speculation on their motivations, it is clear that in order to retain these families and provide for families who prefer District Schools, some arrangement with the State of Maryland for an integrated education finance system with a dedicated income tax is necessary. A portion of District and suburban Maryland tax revenues could go into a common fund for distribution based on enrollment, regardless of residency. Such a funds sharing arrangement will save money by ending the need to prove residency to enroll in school. It provides for the adequate funding of every student without requiring everyone to pay a non-resident income tax.

Another obstacle to statehood is the Federal funding of District felons and the Courts, which was enacted in 1997 as part of the Revitalization Act. At the time, this was necessary to assure the District of long run viability – and it provided a carrot to then D.C. Appropriations Chair Tom Davis because it allowed the closing of Lorton and the redevelopment of the property. At the time, the Commonwealth of Virginia had had excess prison capacity, which was used while the Bureau of Prisons made space in its system as cells opened and as contracts were finalized with Corrections Corporation of America (as mandated by the Act). With more progressive government in both the Commonwealth and the nation, the return of parole and the elimination of mandatory minimum drug sentences are a real possibility. This will lead to excess prison capacity in the region. A dedicated regional income tax to fund all area felons, which will be housed in Virginia and Maryland and supervised in all three jurisdictions, will prove more palatable to the District’s neighbors than a non-resident income tax.

Related to the issue of non-residential income taxes is the status of the National Capital Service Area. The boundaries of the NCSA have remained the same since the establishment of Home Rule in 1974. Both the 1982 Constitution of New Columbia and H.R. 51, the New Columbia Statehood Act considered in the 103rd Congress in 1993 follow the original borders. The current boundaries and a map obtained from the National Capital Planning Commission, are attached to this testimony.

Using the existing boundaries provides stability, however it does pose a danger. These boundaries contain most of the federal core. Income earned within them would not be available for a New Columbia state or territory non-resident income tax, as the income would be earned in the residual seat of government rather than in the state or territory. I have no doubt that the original boundaries were retained to take the non-resident income tax on the table, since without the Federal Core, the amounts subject to tax are greatly reduced. Dealing with the revenue issues at this time, as I have suggested above, allow for a saner treatment of the NCSA. For purposes of providing service, I recommend that the original boundaries of the National Capital Service Area be maintained, but that the majority of it be included in the State of New Columbia and therefore subject to both New Columbia law and taxation. This would overcome one of the legislative objections to H.R. 51, that without an established government, there would be no prevailing law or judiciary in this area once statehood were enacted.

There are a limited number of civilian and military dwellings within the NCSA. The residents of these dwellings would be entitled to any voting rights enacted for the District of Columbia under S.160 (in the unlikely event it is found constitutional if enacted) as well as the seat of government’s three electoral votes.

Of more immediate import is the financial contribution made by the United States for the District’s military reservations. These should be included within the territory so that it may continue to receive impact aid. The next version of H.R. 51 should not exclude them from New Columbia for this reason, as well as their aforementioned status under the 23rd Amendment and S.160 if passed.

I recommend that a separate seat of government be delineated as the residual District of Columbia and that it include only the Capitol building and grounds and the House and Senate Office Buildings, the employees of whom file income taxes in their home states. The Seat of Government should only be separately established in the Statehood bill, so that the Territory can continue to enjoy the benefits of the 23rd Amendment. I am attaching an amended version of H.R. 51, the DC Statehood and Retrocession Act, which includes revised metes and bounds language to do this.

The State of New Columbia, as well as the current Government of the District of Columbia, will and does provide services to the National Capital Service Area. These include fire protection, police protection, sanitation and public works. When protests and national events occur, these costs increase dramatically. The maintenance of commuter routes into the NCSA must also be included in these calculations. The Home Rule Act provides in Section 731 for agreements to provide services between the District Government and the United States, including compensation for the District for the provision of such services. Section 739, clause (b) provides for the appointment of a Director of the NCSA. President Ford appointed the National Capital Planning Commission to draw the map of the NCSA, however no Administrator has ever been appointed. The result is that there is no process in place to provide reimbursement for services to the NCSA. The election of a new administration and the formation of this panel provides an opening to begin negotiations to receive compensation for services so provided and to seek an equitable adjustment for services that should have been provided under a support agreement dating back to the establishment of home rule. A Government Accountability Office study is appropriate to determine what level of service has been provided in comparison to federal payments received, which also include compensation of the ban on non-resident income taxation and for federal compensation for the Districts past assumption of the pensions of Police Officers, Fire Fighters and Teachers. Any amount found in arrears can be satisfied by the transfer of a portion of the District’s General Obligation Debt to the United States and the enactment of a no-year appropriation to fund future reimbursements through the NCPC. Such reimbursements can continue when the New Columbia Territory is organized and when statehood is attained.
An additional open issue, which has arisen since the beginning of Home Rule, is the disposition of St. Elizabeth’s Hospital. In this instance, the District had an agreement with the United States which was never adequately funded. This formerly regional hospital presumably houses patients from the District, Maryland and Virginia, as well as patients referred to it by the Secret Service. If compensation for this facility is not collectable from the United States and surrounding jurisdictions, it should be returned to the Federal inventory.

The final obstacle to voting rights and statehood are Republican objections that the proper solution is retrocession. These first surfaced in the modern area during the ratification debates for the voting rights amendment. This is ironic, since while the Republicans were insisting upon retrocession, the State of Maryland was voting for ratification. A continuing objection to statehood is that a state cannot be formed from another state without its consent. The state of Maryland and the Courts have taken an opposite position – that the passage of the Organic Act in 1801 separated the District from Maryland for all intents and purposes. Albaugh v. Tawes and Howard v. Maryland both affirmed this position when District residents wished to run for office as Marylanders and vote for Maryland Senators. Both of these positions cannot be true – although because Albaugh and Howard are the result of legislation, they could be undone by legislation. To avoid this issue altogether, the easiest fix is to include language requiring ratification by the State of Maryland in H.R. 51, or in any legislation granting voting rights through Maryland (which may be necessary if S. 160 is found unconstitutional because representation must come through a state – which was already held by Alexander v. Daley and Adams v. Bush). The amended copy of H.R. 51 I have provided includes such language.
Thank you for giving me the opportunity to provide these comments for the record and to submit explanatory materials. Please feel free to contact me by email if I can be of further assistance.