[Senate Report 107-343]
[From the U.S. Government Publishing Office]
107th Congress Report
SENATE
2d Session 107-343
_______________________________________________________________________
Calendar No. 701
NO TAXATION WITHOUT REPRESENTATION
ACT OF 2002
__________
R E P O R T
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
together with
MINORITY VIEWS
to accompany
S. 3054
TO PROVIDE FOR FULL VOTING REPRESENTATION IN CONGRESS FOR THE CITIZENS
OF THE DISTRICT OF COLUMBIA, AND FOR OTHER PURPOSES
November 15, 2002.--Ordered to be printed
COMMITTEE ON GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia THAD COCHRAN, Mississippi
THOMAS R. CARPER, Delaware ROBERT F. BENNETT, Utah
JEAN CARNAHAN, Missouri JIM BUNNING, Kentucky
MARK DAYTON, Minnesota PETER G. FITZGERALD, Illinois
Joyce A. Rechtschaffen, Staff Director and Counsel
Cynthia Gooen Lesser, Counsel
Michael L. Alexander, Professional Staff Member
Richard A. Hertling, Minority Staff Director
Johanna L. Hardy, Minority Senior Counsel
Darla D. Cassell, Chief Clerk
C O N T E N T S
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Page
I. Purpose and Summary..............................................1
II. Background.......................................................1
III. Legislative History..............................................9
IV. Section-by-Section Analysis.....................................10
V. Evaluation of Regulatory Impact.................................11
VI. Congressional Budget Office Cost Estimate.......................11
VII. Changes in Existing Law.........................................12
VIII.Minority Views..................................................13
Calendar No. 701
107th Congress Report
SENATE
2d Session 107-343
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NO TAXATION WITHOUT REPRESENTATION ACT OF 2002
_______
November 15, 2002.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Government Affairs, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 3054]
The Committee on Governmental Affairs, to which was
referred the bill (S. 3054) to provide for full voting
representation in Congress for the citizens of the District of
Columbia, and for other purposes, reports favorably thereon and
recommends that the bill do pass.
I. PURPOSE AND SUMMARY
The purpose of S. 3054, the No Taxation Without
Representation Act of 2002, is to provide full voting
representation in Congress for the residents of the District of
Columbia (``D.C.'' or the ``District'') by providing that D.C.
residents would be entitled to elect and be represented by two
Senators in the United States Senate, and as many
representatives in the House of Representatives as a similarly
populous State would be entitled to under the law.
II. BACKGROUND
The residents of the District of Columbia have no
representation in the United States Senate, and they are
represented in the House of Representatives only by a Delegate,
who cannot vote either on the floor or in the Committee of the
Whole. Despite their lack of Congressional representation, D.C.
residents pay federal income tax, paying the second-highest per
capita amount in the nation.\1\ In a country founded upon a cry
of ``No Taxation Without Representation,'' D.C.'s lack of
Congressional representation is an intolerable state of affairs
that is incompatible with core American values. S. 3054 seeks
to right this wrong by the most direct route available:
legislation to afford the District two Senators and a Member of
the House of Representatives with full voting rights.
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\1\ Voting Representation in Congress for Citizens of the District
of Columbia, Hearing Before the Senate Governmental Affairs Committee,
107th Cong., S. Hrg. 107-555 (May 23, 2002) at 55 (Testimony of the
Honorable Linda Cropp, Chairwoman, District of Columbia City Council).
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The History of District of Columbia and Its Lack of Congressional
Representation
The Constitution provides for a seat of government for the
United States outside of any one state and under the exclusive
control of Congress. The ``District Clause'' in Article I,
Section 8, Clause 17 of the Constitution, provides Congress the
authority to ``exercise exclusive Legislation, in all Cases
whatsoever, over such District (not exceeding ten Miles square)
as may, by Cession of particular States, and the Acceptance of
Congress, become the Seat of the Government of the United
States. . . .''
The purpose of establishing a capital outside the
jurisdiction of any one state was to ensure that authority over
the seat of the federal government would be exercised
exclusively by the federal government. In 1783, when the
Continental Congress met in Philadelphia, a group of
disgruntled Revolutionary War soldiers who had not yet been
paid went to the Executive Council of Pennsylvania, which was
meeting in the same building as the Congress, to obtain relief.
When the Members of the Continental Congress requested that the
Executive Council have the Pennsylvania militia put down the
brewing uprising, the Pennsylvania authorities refused for fear
of provoking a violent confrontation. Madison later called this
incident disgraceful, and used it during constitutional debates
to argue successfully for the need for exclusive federal
jurisdiction over the seat of the federal government.\2\
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\2\ Id. at 81 (Testimony of Jamin Raskin, Professor of Law,
Washington College of Law).
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The location of the District of Columbia was established in
1791, on land on the banks of the Potomac River that had been
ceded to the federal government by Maryland and Virginia. The
laws of those states continued in force in the respective areas
they had ceded.\3\ For a time, the residents of the area that
would become the District of Columbia continued to vote in
Maryland and Virginia for federal office holders, including
Congressional representatives. Once federal legislation
formally establishing the District as the seat of the national
government took effect in 1801, however, its residents ceased
to be citizens of Maryland and Virginia and were no longer
permitted to vote in those jurisdictions.\4\
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\3\ Michael K. Fauntroy, ``The Evolution of District of Columbia
Governance,'' CRS Report for Congress (November 13, 2001), at 2.
\4\ Voting Representation in Congress for the District of Columbia,
Hearing Before the Senate Governmental Affairs Committee, 103rd Cong.,
S. Hrg. 103-1053 (August 4, 1994) at 95 (Statement of Adam H. Kurland,
Professor of Law, Howard University School of Law).
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In 1846, the land which had been ceded to the District by
Virginia was returned to Virginia by Congress, reducing the
size of the District of Columbia from 100 square miles to 68
square miles.\5\ Therefore, the District of Columbia that
exists today is comprised of the land ceded by Maryland.
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\5\ Fauntroy, November 13, 2001, at 3, cited at note 2 above.
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Efforts to Obtain Voting Rights For the District of Columbia
Over the years, numerous and persistent efforts have been
made to provide residents of the District the same right that
residents of the States enjoy to vote for and be represented by
elected federal officials. In 1961, the 23rd Amendment granted
District residents the right to appoint three electors for the
purpose of electing the President and Vice-President. Then, in
1970, the District of Columbia Delegate Act allowed District
residents a non-voting Delegate in the House of
Representatives.\6\ Like other Delegates and the Resident
Commissioner from Puerto Rico, the Delegate to Congress from
the District of Columbia is allowed to vote in committee, but
not in the House sitting as the Committee of the Whole, or in
the House sitting as the House.\7\ At the beginning of the
103rd Congress, the House of Representatives agreed to a rule
change that permitted Delegates to vote in the Committee of the
Whole,\8\ but the House revoked this change at the start of the
104th Congress.\9\
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\6\ Pub. L. No. 91-405.
\7\ Michael K. Fauntroy, ``District of Columbia Voting
Representation in Congress: Background, Issues and Options for the
107th Congress,'' CRS Report for Congress (October 31, 2001), at 1.
\8\ If Delegates' votes were the decisive margin on any measure,
however, the rules provided for another ballot, from which the
Delegates would be excluded. See H. Res. 5, which passed the House of
Representatives on January 5, 1993.
\9\ See H. Res. 6, which passed the House of Representatives on
January 5, 1995.
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Past attempts to allow D.C. residents to elect full-voting
representatives in the House and Senate have come primarily in
five forms: (1) bills, similar to S. 3054, providing full
voting representation in Congress for D.C. residents (two D.C.
senators and one representative); (2) proposed constitutional
amendments granting full Congressional representation to D.C.
residents; (3) bills to grant statehood to the District; (4)
bills to retrocede the District to the State of Maryland; and
(5) bills calling for District residents to vote in Maryland
for their representatives to the House and Senate.
Earlier in this Congress, Chairman Lieberman, together with
Senator Russ Feingold, introduced the No Taxation Without
Representation Act of 2001 (S. 603), which provided that:
``[n]otwithstanding any other provision of law, the community
of American citizens who are residents of the District
constituting the seat of government of the United States shall
have full voting representation in the Congress.'' \10\ The
bill was cosponsored by Senators Clinton, Corzine, Daschle,
Dayton, Dodd, Durbin, Feinstein, Harkin, Jeffords, Kennedy,
Leahy and Schumer. Delegate Eleanor Holmes Norton introduced an
identical bill in the House of Representatives, which has 119
cosponsors.\11\ These bills also provide that to the extent
such representation is denied, residents of the District would
be exempt from taxation. S. 3054 does not include this tax
provision, and more expressly would grant Congressional
representation by providing for two Senators and a House Member
representing the District of Columbia.
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\10\ S. 603 was introduced on March 23, 2001.
\11\ H.R. 1193 was introduced on March 22, 2001. In the 105th
Congress, Delegate Norton introduced a bill on July 14, 1998 containing
similar language to the provision quoted above.
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In 1967, Congress considered a possible constitutional
amendment granting full Congressional representation to the
District.\12\ Congress approved a similar measure in 1978, when
a resolution for a constitutional amendment in this regard
passed both the House and Senate.\13\ The proposed amendment
lapsed, however, when only 16 States (rather than the 38
required) ratified it by the 1985 deadline.\14\
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\12\ Fauntroy, October 31, 2001, at 3-4.
\13\ H.J. Res. 554, which was introduced by Representative Don
Edwards on July 25, 1977, passed the House on March 2, 1978 and the
Senate on August 22, 1978.
\14\ H.J. Res. 554 required that the state legislatures act on
ratification within a seven year period.
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Another route to representation in Congress, which would
also provide for increased local autonomy over District
affairs, is statehood. In the last two decades, thirteen
statehood bills have been introduced in the House and the
Senate.\15\ Congress last considered this option in 1993 when
Delegate Norton's statehood bill was defeated on the floor of
the House.\16\ Concerns were expressed about statehood
proposals that extended beyond issues relating to voting
representation.\17\
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\15\ In the 98th Congress, D.C. Delegate Walter Fauntroy introduced
H.R. 3861 on September 12, 1983, and Senator Edward Kennedy introduced
S. 2672 on May 15, 1984. In the 99th Congress, Delegate Fauntroy
introduced H.R. 325 on January 3, 1985, and Senator Kennedy introduced
S. 293 on January 24, 1985. In the 100th Congress, Delegate Fauntroy
introduced H.R. 51 on January 6, 1987, and Senator Kennedy introduced
S. 863 on March 26, 1987. In the 101st Congress, Delegate Fauntroy
introduced H.R. 51 on January 3, 1989, and Senator Kennedy introduced
S. 2647 on May 17, 1990. In the 102nd Congress, Delegate Eleanor Holmes
Norton introduced H.R. 2482 on May 29, 1991, and Senator Kennedy
introduced S. 2023 on November 22, 1991. In the 103rd Congress,
Delegate Norton introduced H.R. 51 on January 5, 1993, and Senator
Kennedy introduced S. 898 on May 5, 1993. In the 104th Congress,
Delegate Norton introduced H.R. 51 on January 4, 1995.
\16\ H.R. 51 failed on November 21, 1993, by a vote of 277-153. The
Senate never voted on any of the statehood bills introduced by Senator
Kennedy.
\17\ According to the Congressional Research Service, there are
concerns about the consequences of further loosening federal control
over the city that houses the seat of the federal government, although
statehood proposals have generally carved out a smaller area within the
city over which the federal government would maintain control. There
are additional concerns about the economic viability of D.C. as a state
given that it does not have a mix of rural, suburban and urban areas
found in other states, even though economic indicators show that D.C.
compares favorably in this regard with other states. Fauntroy, October
31, 2001, at 7-9.
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Retrocession to Maryland of the non-federal land currently
in the District has been proposed as an avenue to Congressional
representation for D.C. residents. Seven bills to achieve this
have been introduced since the 101st Congress.\18\ This would
make District residents citizens of Maryland, eligible to vote
for federal officers representing that state. Critics of this
approach question whether Marylanders want the non-federal
portion of the District back as a portion of their state, and,
just as important, whether D.C. residents wish to be
Marylanders. The retrocession to Virginia in 1846 of the area
that had been contributed by Virginia occurred at the urging
both of Virginia and those living in the area retroceded. It is
unclear whether Congress can, or indeed whether it would be
appropriate for Congress to, compel Maryland to take back the
portion of the District it gave up more than 200 years ago.\19\
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\18\ In the 101st Congress, Representative Ralph Regula introduced
H.R. 4195 on March 6, 1990. In the 102nd Congress, Representative
Regula introduced H.R. 1204 on February 28, 1991. In the 103rd
Congress, Representative Regula introduced H.R. 1205 on March 3, 1993.
In the 104th Congress, Representative Regula introduced H.R. 1028 on
February 23, 1995. In the 105th Congress, Representative Regula
introduced H.R. 831 on February 25, 1997. In the 106th Congress,
Representative Regula introduced H.R. 558 on February 3, 1999. In the
107th Congress, Representative Regula introduced H.R. 810 on March 9,
2001.
\19\ See Voting Representation in Congress for the District of
Columbia, Hearing Before the Senate Governmental Affairs Committee,
103rd Cong., S. Hrg. 103-1053 (August 4, 1994) at 90 (Statement of
Jamin Raskin, Professor of Law, Washington College of Law) (suggesting
that Maryland's consent would be required for retrocession pursuant to
Article IV of the Constitution).
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The suggestion that D.C. remain its own separate entity,
but have its residents vote for Maryland Senators, is similarly
problematic. It is not clear what kind of support for this
solution exists among D.C. residents, and it is unknown how
Marylanders would feel about having their votes for Senate
diluted by the nearly 600,000 residents of D.C.\20\ Congress'
power to impose this solution is also in question.\21\
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\20\ Fauntroy, October 31, 2001, at 9, 11.
\21\ See Voting Representation in Congress for the District of
Columbia, Hearing Before the Senate Governmental Affairs Committee,
103rd Cong., S. Hrg. 103-1053 (August 4, 1994) at 92 (Statement of
Jamin Raskin, Professor of Law, Washington College of Law) (suggesting
that such an arrangement might, among other things, violate the
constitutional requirement that members of Congress be elected ``by the
people'' of the state).
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In addition to the possible legislative solutions, D.C.
residents have attempted to obtain Congressional representation
through the courts. The most recent effort in this regard was
Alexander v. Daley.\22\ In that case, a 2-1 majority of a
three-judge court ruled that under the Constitution, District
residents were not entitled to representation in Congress,
which the court held was reserved to the states. Because the
constitution does not contemplate voting rights for District
residents, the court further ruled that the lack of
representation does not violate equal protection, due process,
or any other constitutional principles. Therefore, despite its
recognition of the ``inequity of the situation plaintiffs seek
to change,'' the court ruled that it could not grant the relief
that the D.C. residents sought, indicating that they ``must
plead their cause in other venues.'' \23\
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\22\ 90 F. Supp.2d 35 (D.D.C. 2000), aff'd, 531 U.S. 940 (2000).
This case was actually two cases consolidated: Adams v. Clinton, Civ.
No. 98-1665 (LFO, MBG, CKK) (D.D.C), filed June 30, 1998, and Alexander
v. Daley, Civ. No. 98-2187 (LFO, MBG, CKK) (D.D.C.) filed September 14,
1998. Because they involved similar claims, the cases were consolidated
on November 3, 1998.
\23\ Id. at 72.
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The legislative branch is the best venue for correcting
this historic inequity. S. 3054 will achieve this important
goal by granting District residents full Congressional
representation in both chambers of the national legislature.
Constitutional Issues
There is some debate about the means by which voting rights
may constitutionally be granted to D.C. residents. Congress
clearly has the power, pursuant to Article IV of the
Constitution, to grant statehood through legislation alone.\24\
The Committee believes that affording D.C. full Congressional
representation--two Senators and a House Member--may also be
achieved through legislation alone, and that a constitutional
amendment, though a reasonable means to this goal, is not a
necessary step.
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\24\ Some commentators, however, suggest that granting statehood to
D.C. would be constitutionally problematic. See, e.g., Voting
Representation in Congress for Citizens of the District of Columbia,
Hearing Before the Senate Governmental Affairs Committee, 107th Cong.,
S. Hrg. 107-555 (May 23, 2002) at 75-76 (Statement of Adam H. Kurland,
Professor of Law, Howard University School of Law) (suggesting the 23rd
Amendment, which granted to D.C. electoral votes in Presidential
elections, would have to be repealed).
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Article I of the Constitution specifically provides that
the Senate itself shall be composed of two Senators from each
``state,'' and that the House be composed of members chosen by
the people of the several ``states.'' Under the plain meaning
of these clauses, the citizens of the District are not entitled
to representation in the House or the Senate because the
District of Columbia is not a state. Indeed, this
interpretation of Article I, supported by contemporary
historical evidence, has been adopted by courts.\25\
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\25\ See, e.g., Alexander v. Daley, 90 F. Supp.2d at 65.
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Some argue that a constitutional amendment is necessary to
alter this arrangement because it is integral to the
constitutional structure of the United States, and represents a
delicate compromise among the states that made ratification of
the Constitution possible.\26\ Thus, the argument goes, the
present lack of D.C. representation in the federal legislature
is a feature of American federalism and because Congress does
not have the power, by itself, to alter the structure of the
Constitution, a constitutional amendment would be required to
change this inequity.\27\
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\26\ Voting Representation in Congress for Citizens of the District
of Columbia, Hearing Before the Senate Governmental Affairs Committee,
107th Cong., S. Hrg. 107-555 (May 23, 2002) at 69 (Testimony of Adam H.
Kurland, Professor of Law, Howard University School of Law).
\27\ Id.
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The Committee believes that a constitutional amendment to
afford D.C. full Congressional representation would be an
effective and appropriate means to this end. The Committee does
not, however, believe that a constitutional amendment is
necessary; Congress has the power to treat D.C. as if it were a
state for the purposes of Congressional representation, which
is what S. 3054 does.
Congress already treats the District as though it were a
state for over 500 statutory purposes--from federal taxation to
military conscription to highway funds, education funds, and
national motor voter requirements. The Supreme Court has also
deemed D.C. the equivalent of a state for certain
constitutional purposes, including the Fourteenth Amendment's
Privileges and Immunities Clause and the Full Faith and Credit
Clause under Article IV of the Constitution.\28\ Even where the
Supreme Court has held that D.C. residents do not have the same
rights granted to inhabitants of a state by the Constitution,
it has ruled in at least one case that Congress could extend
those rights to D.C. residents.
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\28\ Id. at 83 (Testimony of Jamin Raskin, Professor of Law,
Washington College of Law).
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That 1949 case, National Mutual Insurance Co. v. Tidewater
Transfer Co., considered the constitutional provision regarding
diversity jurisdiction, which allows cases arising under state
law to be brought in federal courts where the controversy
exists between ``citizens of different states.'' \29\ An 1805
Supreme Court case had held that D.C. did not constitute a
state for the purposes of that clause, and therefore that D.C.
residents could not sue or be sued in diversity in federal
court. Justice Marshall indicated, however, that the matter was
one for ``legislative, not judicial consideration.'' \30\ It
took over a hundred years, but Congress eventually took the
cue: in 1940, Congress passed a law that extended diversity
jurisdiction to cases involving D.C. residents, thereby
essentially treating the District as if it were a state for the
purposes of that provision of the Constitution.\31\ The Senate
Judiciary Committee, in reporting out the bill, cited Congress'
plenary power over the District under Article I, section 8 of
the Constitution.\32\
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\29\ National Mutual Ins. Co. v. Tidewater Transfer Co., Inc., 337
U.S. 582 (1949).
\30\ Hepburn & Dundas v. Ellzey, 2 Cranch. 445, 463 (1805).
\31\ Codified at 28 U.S.C. Sec. 1332.
\32\ Tidewater, 337 U.S. at 588-89.
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The Tidewater Court, in a plurality opinion, upheld the
statute. The plurality determined that Congress' conclusion
that it had the requisite power under Article I was ``well
founded.'' \33\ The plurality described that power as a ``full
and unlimited jurisdiction to provide for the general welfare''
of the District ``by any and every act of legislation which
[Congress] may deem conducive to that end.'' \34\ Based on this
extensive power, as well Congress' power to ordain and
establish the lower federal courts, the plurality held that
Congress could extend diversity jurisdiction to include cases
involving D.C. residents. Thus, Congress, pursuant to its
plenary power over the District, was able to give D.C.
residents rights--in this case access to the courts--that the
Constitution appears on its face to deny them, and to grant
only to citizens of states.\35\
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\33\ Id. at 589.
\34\ Id. at 602, quoting Neild v. District of Columbia, 110 F.2d
246, 250 (D.C. Cir. 1940).
\35\ In answers he submitted to questions for the record in the May
23, 2002 Governmental Affairs Committee hearing, Voting Representation
in Congress for Citizens of the District of Columbia, Professor Adam
Kurland of Howard University argued that Tidewater held that ``citizens
of DC are not citizens of a State for the purposes of diversity
jurisdiction, and that Congress lacked the legislative authority to
alter that constitutional result.'' Voting Representation in Congress
for Citizens of the District of Columbia, Hearing Before the Senate
Governmental Affairs Committee, 107th Cong., S. Hrg. 107-555 (May 23,
2002) at 199-200. While it is certainly true that a majority of the
Court affirmed the 1805 ruling that D.C. does not constitute a state
for the purposes of the Constitutional clause regarding diversity, the
Tidewater court based its very holding on Congressional authority to
alter that result. Obviously Congress by itself does not have the power
to change the Constitution, but it can and did in that case treat D.C.
as if it were a state, granting District residents the same rights as
state residents have under that Constitutional provision. It is on that
Congressional power that the Committee relies here to advance
legislation that treats D.C. as if it were a state for the purposes of
Congressional representation.
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As Walter Smith of the D.C. Appleseed Center, and L. Elise
Dieterich of Swidler Berlin Shereff Friedman LLP, argue in
their May 22, 2002 memorandum, ``Congress' Authority to Pass
Legislation Giving District of Columbia Citizens Voting
Representation in Congress,'' the very situation that led the
Supreme Court to conclude that Congress had authority to treat
D.C. as if it were a state is paralleled here.\36\ The holding
in Alexander v. Daley--that Article I affords Congressional
representation only to states, and that term cannot be
interpreted to include D.C. for the purposes of those
provisions--is similar to the holding in Hepburn, in which the
Supreme Court held that Article III extends diversity
jurisdiction only to states, which does not include D.C. It
follows, therefore, that Congress may act here for the benefit
of District residents pursuant to its plenary power over D.C.
as it acted in 1940: by passing legislation to treat D.C. as if
it were a state for the purposes of Congressional
representation under Article I. As Smith and Dieterich put it,
``Given the breadth of Congress' power under the District
Clause, it would appear that Congress has the authority to
provide for the `general welfare' of D.C. citizens by providing
them the most important right they as citizens should possess--
the right to vote.'' \37\
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\36\ Voting Representation in Congress for Citizens of the District
of Columbia, Hearing Before the Senate Governmental Affairs Committee,
107th Cong., S. Hrg. 107-555 (May 23, 2002) at 89-99 (Walter Smith,
Esq. and L. Elise Dieterich, Esq., ``Congress' Authority to Pass
Legislation Giving District of Columbia Citizens Voting Representation
in Congress,'' May 22, 2002, submitted for the record by Professor
Jamin Raskin). This memorandum is also included in the record of the
Senate Governmental Affairs Committee business meeting dated October 9,
2002, at which the Committee voted to report S. 3054 favorably.
\37\ Id at 90.
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Thus, by adopting S. 3054, even though a court has held
that D.C. is not a ``state'' as that term is used under Article
I for the purposes of Congressional representation, Congress
may similarly choose to extend to the residents of the District
representation in both chambers of Congress. Nothing in the
Constitution prohibits this expressly--it is simply something
that the Constitution grants specifically to the states,
without mentioning the District of Columbia either way. To be
sure, D.C. is not a state, nor would S. 3054 make it a state.
Nevertheless, Congress may as it did with access to the courts,
grant D.C. the same voice in the national legislature that
states expressly receive under the Constitution.
The Tidewater Court made clear that the one limiting
principle on Congress' plenary power over the District is that
``it may not draw into Congressional control subjects over
which there has been no delegation of power to the Federal
Government.'' \38\ In that case, the court held that Congress'
general authority to ordain and establish the lower federal
courts meant that Congress already had the power to expand
jurisdictional limits beyond those expressly provided in the
Constitution, as it had in the context of bankruptcy.\39\ Thus,
Congress was not venturing into an area outside its normal
scope of authority. Similarly, granting representation in the
national legislature is something Congress already has the
authority to do, pursuant to its power to grant Statehood under
Article IV, Section 3. Therefore, Congress has the power to act
on behalf of the residents of the District, and treat them as
if they were residents of a state, in order to rectify an
inequity that has persisted now for over 200 years.
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\38\ Tidewater, 337 U.S. at 602.
\39\ Id. at 594-95.
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Increased Membership of the House of Representatives
Membership in the House has stayed the same since 1911,
when it was set at 435 members. Until then, throughout the 19th
century, Congress increased the size of the House with each
census both to account for the growth in population and to
provide for additional Members from newly admitted states.\40\
As a result of a dispute about the validity of the 1920 census,
Congress failed to approve a bill that would have increased the
size of the House to 438 (the number required so that no state
would lose a Member), and indeed failed to reapportion the
House until after the next census.\41\ In 1929, just before the
1930 census, Congress passed the statute in effect today, which
provides for reapportionment based on the ``then-existing
number of Representatives.'' \42\ The number in effect then,
435, has not changed. When Alaska and Hawaii were admitted, a
House bill was introduced to increase the membership in the
House, but it never reached the floor.\43\
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\40\ David C. Huckabee, ``House of Representatives: Setting the
Size at 435,'' CRS Report for Congress (July 11, 1995) at 1.
\41\ Id. at 1-2.
\42\ 2 U.S.C. Sec. 2(a).
\43\ H.R. 10264 was reported by the House Judiciary Committee on
February 20, 1962, but failed when it was recommitted on March 8, 1962
by a voice vote. See Huckabee at 6.
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There is no magic to the number ``435,'' and there appears
to be no reason beyond tradition simply to stay with it. The
Committee deems it appropriate to increase the House membership
in this case as a recognition that D.C.'s Delegate in the House
really is and should always have been regarded as a full Member
of that body.
III. LEGISLATIVE HISTORY
S. 3054, the ``No Taxation Without Representation Act of
2002,'' was introduced by Chairman Lieberman on October 3, 2002
and referred to the Governmental Affairs Committee. Senators
Feingold, Kennedy, Durbin, Jeffords, Schumer, Daschle,
Mikulski, Sarbanes, and Landrieu joined as co-sponsors of this
legislation.
Senator Lieberman had introduced an earlier bill, S. 603,
the ``No Taxation Without Representation Act of 2001,'' which
also addressed the inequity of D.C. residents' lack of
Congressional voting representation. On February 14, 2002,
during the debate on S. 565, the Equal Protection of Voting
Rights Act of 2001, Chairman Lieberman and Senator Feingold
offered, and then withdrew, S. 603 as an amendment to that
legislation. This debate marked the first time since 1978 that
the issue of voting representation for residents of the
District of Columbia had been considered on the floor of the
United States Senate. As Chairman Lieberman stated:
The vote is a civic entitlement of every American
citizen. We believe the vote to be democracy's most
essential tool. Not only is the vote the indispensable
sparkplug of our democracy, the vote is the sine qua
non of democracy and equality because each person's
vote is of equal weight, no matter what their wealth is
or their station in life--or is it? That is the
question this amendment poses. As we engage in this
debate to remedy the voting problems that arose in the
election of 2000, we have to acknowledge the most long
standing denial of voting representation in our
country, and that is the denial of voting rights to the
citizens who live right here in our Nation's
Capital.\44\
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\44\ 148 Cong. Rec. S822 (February 14, 2002).
On May 23, 2002, the Committee held a hearing entitled
``Voting Representation in Congress for Citizens of the
District of Columbia.'' Nine witnesses appeared: Senator
Russell Feingold, an original cosponsor of both S. 603 and S.
3054; Congresswoman Eddie Bernice Johnson (D-TX) Chair,
Congressional Black Caucus; Congresswoman Eleanor Holmes Norton
(Delegate-D.C.); the Honorable Anthony A. Williams, Mayor of
the District of Columbia; the Honorable Linda W. Cropp,
Chairwoman, D.C. City Council; the Honorable Florence H.
Pendleton, District of Columbia Statehood Senator; Wade
Henderson, Executive Director, Leadership Conference on Civil
Rights; Adam H. Kurland, Professor of Law, Howard University
School of Law; and Jamin Raskin, Professor, Washington College
of Law, American University.
Resolutions in support of voting representation for
residents of the District were submitted by the State of
Illinois, as well as the cities of Philadelphia, Chicago,
Baltimore, New Orleans, Cleveland, Los Angeles, and San
Francisco. Written statements for the record were also
submitted by Betty Ann Kane, on behalf of the Board of
Directors, Committee for the Capital City; the Honorable Ralph
Regula, (R-Ohio); the Honorable Paul Strauss, Shadow United
States Senator, District of Columbia; John Forster, Activities
Coordinator, Committee for the Capital City; and Antonia
Hernandez, President and General Counsel, Mexican American
Legal Defense and Educational Fund.
All of the witnesses testified in support of full voting
representation in Congress for citizens of the District of
Columbia. Congresswoman Eleanor Holmes Norton testified that
the District is ``seriously harmed'' by having no
representation in the Senate. She noted that after struggling
to get the budget of the District of Columbia to the floor of
the House,
I must then stand aside, unable to cast a vote on our
own budget, while members of the House from 49 States
where residents pay less in Federal income taxes per
capita than my constituents vote yea or nay on the D.C.
budget. Indeed, my colleagues from seven states that
have populations about our size each have one vote in
the House and two in the Senate on the D.C. budget and
everything else. This pathetic paradox has been acted
out on the House floor countless times in the 32 years
D.C. has had a delegate.\45\
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\45\ Voting Representation in Congress for Citizens of the District
of Columbia, Hearing Before the Senate Governmental Affairs Committee,
107th Cong., S. Hrg. 107-555 (May 23, 2002) at 7 (Testimony of the
Honorable Eleanor Holmes Norton).
The Committee met on October 9, 2002 to consider S. 3054.
The Committee ordered the bill reported out of the Committee by
a vote of 9-0. Senators Levin, Akaka, Durbin, Cleland,
Torricelli, Carper, Carnahan, Dayton, and Lieberman voted in
favor of the legislation.
IV. SECTION-BY-SECTION ANALYSIS
Section 1 sets forth the short title of the Act, the ``No
Taxation Without Representation Act of 2002.''
Section 2 details the findings of the Act. Congress finds
that (1) the residents of the District of Columbia are the only
Americans who pay Federal income taxes but are denied voting
representation in the House of Representatives and the Senate,
(2) the residents of the District suffer the very injustice
against which our Founding Fathers fought, because they do not
have voting representation as other taxpaying Americans do and
are nevertheless required to pay Federal income taxes, unlike
Americans who live in the territories, (3) the principle of
one-person, one vote requires that residents of the District
are afforded full voting representation in the House and
Senate, (4) despite the denial of voting representation,
Americans in the Nation's Capital are second among residents of
all States in the per capita income taxes paid to the Federal
Government, and (5) unequal voting representation in our
representative democracy is inconsistent with the founding
principles of the Nation and the strongly held principles of
the American people today.
Section 3 specifically entitles D.C. residents to the
Congressional representation they would have if they were
residents of a State. The section permits them to elect two
Senators and as many Members of the House of Representatives as
Washington, D.C. would be apportioned based on its population
if it were a State. (Under current apportionment standards,
D.C. would receive one Representative.)
Section 4 provides for elections of D.C.'s two Senators and
its Representative in the House of Representatives, requiring
that 30 days following enactment, the Mayor of Washington, D.C.
issue a proclamation for the election of two Senators and a
Representative to take place, including a primary and a general
election according to local law. Once elections are held, the
bill provides that certification of the results by the Mayor
shall entitle the winners to take seats in the appropriate
Chambers of Congress.
Section 5 provides that the permanent membership of the
House of Representatives will be increased by one to 436. This
section also provides that until the next reapportionment--when
D.C. will receive as many Members in the House as its
population allows--D.C. will be entitled to elect one Member of
the House of Representatives. In addition, this section
expressly provides that D.C.'s current Delegate to the House of
Representatives will continue in her current position until the
elections contemplated by the bill take place.
V. EVALUATION OF REGULATORY IMPACT
Paragraph 11(b)(1) of rule XXVI of the Standing Rules of
the Senate requires that each report accompanying a bill
evaluate the ``regulatory impact which would be incurred in
carrying out this bill.'' According to the Congressional Budget
Office (CBO), S. 3054 contains no private sector mandates, but
does contain an intergovernmental mandate as defined in the
Unfunded Mandates Reform Act (UMRA). The bill would require the
District to hold both a primary and a general election to fill
the two Senate seats and one seat in the House of
Representatives. CBO estimates that the costs to comply with
those requirements would not exceed the threshold established
in UMRA. S. 3054 has no additional regulatory impact.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 16, 2002.
Hon. Joseph I. Lieberman,
Chairman, Committee on Governmental Affairs, U.S. Senate, Washington,
DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3054, the No
Taxation Without Representation Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 3054--No Taxation Without Representation Act of 2002
S. 3054 would deem the District of Columbia to have the
status of a state for the purposes of Congressional
representation. The bill would authorize the District of
Columbia to elect two Senators in the United States Senate and
as many Representatives in the House of Representatives to
which a similarly populous state would be entitled.
Based on the current administrative and expense allowances
available for Senators and other typical office costs, CBO
estimates that the addition of two new Senators would cost
approximately $5 million annually beginning in fiscal year
2003, subject to the appropriation of necessary funds.
Establishing voting representation in the House of
Representatives would not add significant costs because the
District of Columbia currently has a nonvoting delegate to that
chamber.
Enacting S. 3054 would increase direct spending for the
payment for the salaries of the two new Senators. CBO estimates
that the increase in direct spending would be approximately
$400,000 per year.
The bill contains no private-sector mandates as defined in
the Unfunded Mandates Reform Act (UMRA). S. 3054 contains an
intergovernmental mandate as defined in UMRA because it would
require the District of Columbia to hold both a primary and
general election to fill two Senate seats and one seat in the
House of Representatives. Based on information from the Board
of Elections and Ethics of the District of Columbia, CBO
estimates that the one-time cost to hold a special primary and
general election would be less than $1 million, well below the
threshold established in UMRA ($58 million in 2002, adjusted
annually for inflation). No additional costs would be incurred
in subsequent years as the elections would be part of the
District's normal election cycle.
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs), who can be reached at 226-2860,
and Susan Sieg Tompkins (for the state and local impact), who
can be reached at 225-3220. This estimate was approved by
Robert A. Sunshine, Assistant Director for Budget Analysis.
VII. CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, must be shown, S. 3054 would effect no
changes in existing law.
VIII. MINORITY VIEWS
Voting representation in Congress for the residents of the
District of Columbia is a serious and important issue that has
been the subject of debate since the inception of this Nation.
Historical records dating back to the founding of this country
indicate that this issue is not a new one and is a complicated
one raising important constitutional issues.\1\ I am troubled,
therefore, that the Committee has favorably reported a bill to
the full Senate of this magnitude that was introduced less than
one week prior to the Committee business meeting. This
Committee did hold a hearing on the issue of voting
representation for the District of Columbia in May; however,
this Committee was not provided enough information or time to
adequately make a decision on this new piece of legislation. As
of this business meeting, the May hearing record is
incomplete--post-hearing questions Senator Fred Thompson
submitted to legal experts who testified at the hearing have
not all been returned. The questions Senator Thompson submitted
for the record go right to the heart of the matter: does
Congress have the power through simple legislation to provide
District residents voting representation in Congress or does it
require a Constitutional amendment?
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\1\ The issue of voting representation for D.C. residents has been
debated and considered for over 200 years, beginning with the
Continental Congress. A permanent seat for the government was desired
to end the movement of Congress from city to city. The importance of
creating the District under the exclusive legislative authority of
Congress was highlighted following an incident in 1783 when the
Congress was meeting in Philadelphia. Continental soldiers left their
barracks and marched to Congress to collect their unpaid wages. The
Congress, after seeking help from the local officials for protection,
were denied assistance. Under increasing threats, the Congress
adjourned and reconvened in Princeton, NJ. This revolt highlighted the
need for Congress to have control of its surroundings, for its
protection. In 1787, the Constitutional Convention agreed to provide
exclusive control to the federal government over the national capital.
The constitutional provisions adopted did not set a specific
location and much debate occurred thereafter as to where to locate the
seat of the government. Philadelphia and New York were among the cities
lobbying for that privilege; however, a final agreement was made to
locate the capital on the Potomac River. In 1790, Congress authorized
the President to appoint a panel of three commissioners to fix an exact
location along the Potomac River. Following that time, Maryland and
Virginia ceded land accordingly to the federal government. From 1790
until 1801, those inhabitants of the District remained under the laws
of the respective states and were allowed to continue voting in those
states as residents. This ended in 1801 when Congress passed the
Organic Act of 1801 followed by the Organic Act of 1802, which combined
established a local government. At that time, residents of the new city
were no longer permitted to vote in Maryland and Virginia.
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Representation in the House of Representatives and the U.S.
Senate is governed by the United States Constitution. Governing
the election of U.S. Senators, Article I, Sec. 3 of the
Constitution states, ``[t]he Senate of the United States shall
be composed of two Senators from each State.'' With regard to
electing Members of the House, Article I, Sec. 2 provides that
the House of Representatives shall be composed of members
chosen by the people of the several states and that each member
of Congress shall be an inhabitant of the state from which he
shall be chosen. Implicit in each section is the requirement
that the individuals elected come from a ``State'' of the
United States. Because the District of Columbia is not a state,
nor, in fact, does the majority claim it to be, this
legislation is inadequate to circumvent these constitutional
provisions. Instead, the provisions must be repealed or, as the
minority contemplates, rectified by subsequent amendment.\2\
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\2\ In fact, a subsequent amendment was precisely the approach
taken by this body in 1978. At that time, Assistant Attorney General
John M. Harmon stated that ``it was the intent on behalf of the Framers
that the actual seat of the Federal Government, as opposed to its other
installations, be outside any State and independent of the cooperation
and consent of the State authorities. . . . If these reasons have lost
validity, the appropriate response would be to provide statehood for
the District by constitutional amendment rather than to ignore the
Framers' intentions.''
See Department of Justice ``Report to the Attorney General on The
Question of Statehood for the District of Columbia,'' April 3, 1987, at
p.2.
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Furthermore, treating the District of Columbia as a state
without amending the Constitution is an attempt to circumvent
the longstanding principles of federalism first enunciated by
the Framers. The Framers created a dual system of governance
for America, dividing power between the States and the federal
government. In order for each to serve its proper function in
our federal system, States must maintain independence of the
federal government, and consequently, the federal government
must remain independent of the States.
Further, in discussing the authorities of Congress, the
Constitution specifically refers to States in delineating the
makeup of the federal legislature, whereas other provisions
direct Congress' authority over varying entities within the
United States, including the District as the ``seat of
Government,'' \3\ the many Indian Tribes,\4\ and
territories.\5\ The District of Columbia is a federal enclave,
designed to be both politically and economically dependent on
the federal government. Legislating this enclave to the status
of a State, without amending the Constitution or making it a
State, would violate the federalist principle of one State
among many. Because it is the national capital, The District
would be primus inter pares, first among equals.\6\ It would
become, as James Madison argued, the entity ``whose sole
business is to govern, to control all the other states. It
would be the imperial state; it would be `Rome on the Potomac.'
'' \7\
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\3\ Article I, Sec. 8, Clause 17.
\4\ Article I, Sec. 8, Clause 3.
\5\ Article IV, Sec. 3, Clause 2.
\6\ Department of Justice, April 2, 1987, at p. 1.
\7\ Id.
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Alternatively, the majority's conclusion that mere
legislation will grant the District the status of a State makes
light of the serious process this Nation undertook to ratify
the 23rd Amendment. The 23rd Amendment provides the ``District
constituting the seat of Government of the United States'' with
three electoral votes in presidential elections. Congress
recognized that the Constitution prevented residents of the
District from participating in presidential elections; the
District is not a state and, therefore, did not have the
Congressional representation necessary to participate in the
Electoral College. Congress does not have the authority through
simple legislation to alter the presidential election process.
Similarly, Congress does not have the authority through simple
legislation to alter the makeup of the federal legislature as
provided for in Article I, Sec. Sec. 2-3 of the Constitution.
The majority consistently points to other instances where
Congress treats the District as a state, as authority for
allowing the District to be treated as such in the particular
instance of awarding voting rights. This argument, however, is
wholly unpersuasive in supplanting the need for a
constitutional amendment to give District residents full
representation in Congress.
Legislation that treats the District ``as if it were a
state'' is a permissible use of Congressional authority, when
done pursuant to Congress' powers, as enumerated in Article I,
Sec. 8 of the Constitution. However, this authority does not
extend to altering the make-up of the federal legislature, as
provided for in Article I, Sec. Sec. 2-3 of the Constitution.
Congress has absolutely no authority to pass legislation
treating the District as a state for purposes of providing and
allocating representatives in the national legislature.
The majority cites the Tidewater \8\ case as controlling in
this instance. In this case, five justices of the U.S. Supreme
Court concurred in a decision that upheld a statute allowing
District residents to sue residents of other states in federal
courts under diversity jurisdiction.\9\ The majority infers
from this holding, as well as comments made by Justice Marshall
in the Ellzey \10\ case, that Congress has the power to give
District residents voting rights.\11\ This conclusion, however,
is wholly unsupported.
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\8\ National Mutual Insurance v. Tidewater Transfer Co., 337 U.S.
582 (1949).
\9\ The Tidewater case was decided by a plurality decision--a
majority of the Supreme Court Justices concurred in the decision to the
case but disagreed in the rationale. As a result, there is no opinion
from Tidewater which is controlling or binding on the courts.
\10\ Hepburn & Dundas v. Ellzey, 6 U.S. 445 (1805).
\11\ Chief Justice John Marshall concluded in the Ellzey case that
residents in the District of Columbia are not residents of a State as
provided in the Constitution for purposes of diversity jurisdiction.
Chief Justice Marshall concedes the discrepancy since District
residents are United States citizens and that a solution exists through
the legislation. He did not discuss in detail whether simple
legislation or a Constitutional amendment was required. Congress
eventually legislated a solution, using its authority to amend the
jurisdiction of the courts.
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In Tidewater, six justices reaffirmed the opinion of
Justice Marshall in Ellzey, holding that District residents are
not citizens of a State for the purposes of diversity
jurisdiction, and that Congress lacks the authority to modify
that result.\12\ Tidewater and Ellzey do not, as the majority
argues, provide Congress with the authority to grant voting
rights to District residents, rather, these cases merely stand
for the presumption that Congress has the ability to modify the
jurisdiction of the federal courts.\13\
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\12\ See Tidewater at 588: ``We therefore decline to overrule the
opinion of Chief Justice Marshall, and we hold that the District of
Columbia is not a state within Article III of the Constitution. In
other words, cases between citizens of the District and those of the
states were not included in the catalogue of controversies over which
the Congress could give jurisdiction to the federal courts by virtue of
Art. III.''
\13\ Thus when Justice Marshall states that the matter was one for
``legislative, not judicial consideration,'' he is not talking about
giving the District all rights guaranteed to states, but merely
adjusting the jurisdiction of the federal courts. Ellzey, 6 U.S. at
463.
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In addition to the evidence of the Framers' intent, there
have been consistent interpretations of Congress' authority to
legislate on this issue in the legal community. The Justice
Department, during both Republican and Democrat
Administrations, has consistently maintained that providing
D.C. residents with voting representation in Congress would
require a Constitutional amendment.\14\ A constitutional
amendment was required to provide for direct election of
Senators,\15\ women's suffrage,\16\ and the District's
participation in the election of the President and Vice
President.\17\ For example, during the Carter Administration
the Justice Department maintained in their testimony before the
Senate Judiciary Committee that ``because article I was in part
intended precisely to distinguish the Federal District from the
States, we do not believe that the word `State' as used in
article I can fairly be construed to include the District under
any theory of `nominal statehood.' '' \18\ During the 1960
consideration of the constitutional amendment to allow D.C.
residents to vote in presidential elections, the House
Judiciary Committee concluded that just as the Constitution at
that time only provided selection of the President and Vice
President through the States, the Constitution provides voting
representation in Congress through the States.\19\ Moreover, in
2000 the U.S. District Court for the District of Columbia
concluded, ``denial of representation does not deny them equal
protection, abridge their privileges or immunities, deprive
them of liberty without due process, or violate the guarantee
of a republican form of government.'' \20\ Any contradiction in
the lack of Congressional voting representation for residents
of the District of Columbia derives from the Constitution.
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\14\ See generally Report to the Attorney General on the Question
of Statehood for the District of Columbia (April 3, 1987).
\15\ U.S. Const. Amend. XVII.
\16\ U.S. Const. Amend. XIX.
\17\ U.S. Const. Amend. XXIII. In 1961, President Kennedy signed
the 23rd Amendment which was ratified by the States in 1963. This
amendment allows District residents to vote for President and Vice
President as if D.C. were a state.
\18\ District of Columbia Representation in Congress, Hearings
Before the Subcommittee on the Constitution, Committee on the
Judiciary, U.S. Senate, 95th Congress, 2d Session on S.J. Res. 65.
(April 17, 27 and 28, 1978), p. 19.
\19\ Granting Representation in the Electoral College to the
District of Columbia, Committee on the Judiciary, U.S. House of
Representatives, 86th Congress, 2d Session (May 3, 1960), p. 2.
\20\ Adams v. Clinton, 90 F.Supp. 2d at 72 (2000). The opinion in
this case highlights records from the Constitutional Convention that
the framers of the Constitution intended not to grant residents of the
District voting representation in Congress. They intended for Congress
to be the governing body over the federal city.
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Thus, to achieve the goal of granting Congressional
representation to the residents of the District of Columbia,
neither the Constitution, nor statute, nor case law provides
Congress with the power to bypass the constitutional amendment
process.
George Voinovich.
Jim Bunning.