[Senate Hearing 107-555]
[From the U.S. Government Publishing Office]
VOTING REPRESENTATION IN CONGRESS FOR CITIZENS OF THE DISTRICT OF
COLUMBIA
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 23, 2002
__________
Printed for the use of the Committee on Governmental Affairs
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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 Counsel
Darla D. Cassell, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Lieberman............................................ 1
Senator Durbin............................................... 3
Senator Levin................................................ 4
Prepared statement:
Senator Bunning.............................................. 37
WITNESSES
Thursday, May 23, 2002
Hon. Eleanor Holmes Norton, a Representative in Congress from the
District of Columbia........................................... 5
Hon. Eddie Bernice Johnson, a Representative in Congress from the
State of Texas................................................. 9
Hon. Russell D. Feingold, a U.S. Senator from the State of
Wisconsin...................................................... 10
Hon. Anthony A. Williams, Mayor, District of Columbia............ 13
Hon. Linda W. Cropp. Chairman, Council of the District of
Columbia....................................................... 16
Hon. Florence H. Pendleton, District of Columbia Statehood
Senator........................................................ 18
Wade Henderson, Executive Director, Leadership Conference on
Civil Rights................................................... 22
Adam H. Kurland, Professor of Law, Howard University School of
Law............................................................ 24
Jamin B. Raskin, Professor, Washington College of Law, The
American University............................................ 29
Alphabetical List of Witnesses
Cropp, Hon. Linda W.:
Testimony.................................................... 16
Prepared statement with attachments.......................... 53
Feingold, Hon. Russell D.:
Testimony.................................................... 10
Prepared statement........................................... 41
Henderson, Wade:
Testimony.................................................... 22
Prepared statement........................................... 62
Johnson, Hon. Eddie Bernice:
Testimony.................................................... 9
Kurland, Adam H.:
Testimony.................................................... 24
Prepared statement........................................... 68
Norton, Hon. Eleanor Holmes:
Testimony.................................................... 5
Prepared statement........................................... 38
Pendleton, Hon. Florence H.:
Testimony.................................................... 18
Raskin, Jamin B.:
Testimony.................................................... 29
Prepared statement........................................... 79
Williams, Hon. Anthony A.:
Testimony.................................................... 13
Prepared statement with an attachment........................ 44
Appendix
Memorandum dated May 22, 2002, sent to Hon. Eleanor Holmes
Norton, Hon. Anthony Williams, Hon. Linda Cropp and Hon. Robert
Rigsby from Walter Smith, Executive Director, DC Appleseed
Center, regarding Congress' Authority to Pass Legislation
Giving D.C. Citizens Voting Representation in Congress
(submitted by Mayor Williams).................................. 89
Resolutions (submitted by Mayor Williams) from:
State of Illinois............................................ 100
City of Chicago.............................................. 101
City of Philadelphia......................................... 102
City of Baltimore............................................ 103
City of New Orleans.......................................... 106
City of Cleveland............................................ 107
City of Los Angeles.......................................... 108
City of San Francisco Board of Supervisors................... 109
Article by Jamin B. Raskin entitled ``Is This America? The
District of Columbia and the Right to Vote,'' Harvard Civil
Rights--Civil Liberties Law, Vol. 34, No. 1, Winter 1999....... 111
Betty Ann Kane, on behalf of the Board of Directors, Committee
for the Capital City, prepared statement....................... 171
Article entitled ``Implicit Statehood: Give the District a new
constitutional status,'' by Timothy D. Cooper, Charles Wesley
Harris, and Mark David Richards................................ 174
Hon. Ralph Regula, a Representative in Congress from the State of
Ohio, prepared statement....................................... 175
Senator Paul Strauss, Shadow United States Senator Elected by
Voters of the District of Columbia, prepared statement with
attachments.................................................... 177
Letter dated April 2, 2002 to President Bush from James N.
Rimensnyder, Cadet PFC USCC.................................... 189
Letter dated March 26, 2002, from Joseph N. Grano, President,
Rhodes Tavern--D.C. Heritage Society, with attachments......... 190
John Forster, Activities Coordinator, Committee for the Capital
City, prepared statement....................................... 194
Antonia Hernandez, President and General Counsel, Mexican
American Legal Defense and Educational Fund (MALDEF), prepared
statement...................................................... 195
Questions for the record from Senator Thompson and responses
from:
Mr. Kurland with attachments................................. 198
VOTING REPRESENTATION IN CONGRESS FOR CITIZENS OF THE DISTRICT OF
COLUMBIA
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THURSDAY, MAY 23, 2002
U.S. Senate,
Committee on Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:36 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Durbin, and Levin.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. Good afternoon. This hearing will come
to order. I thank the Hon. Eleanor Holmes Norton for being
here. We have two other members of the opening panel. The
second Congresswoman is Eddie Bernice Johnson. Senator Feingold
is on the way.
This hearing has been called to discuss a question that is
for 600,000 Americans an ongoing injustice and is for the
Nation as a whole, I think, a stain on the fabric of our
democracy. The question is, when will we finally extend full
voting rights and voting representation in Congress to citizens
of the District of Columbia? This denial is more than an
historical anomaly. It is an ongoing and outrageous
contradiction of the fundamental principles and rights of
citizens of our great country.
The Governmental Affairs Committee, which I am privileged
to Chair, has oversight over the municipal affairs of the
District of Columbia and in that sense has jurisdiction over
the matter that we are discussing today.
To me, it is incomprehensible that in the year 2002, ours
is the only democracy in the world in which citizens of the
capital city are not represented in the national legislature.
Think of what visitors from around the world think when they
come to see all of the beautiful landmarks and monuments of
this great capital city, which are the symbols worldwide of
democracy, if they would know that the people who live in this
city alongside those symbols of democracy every day do not have
one of the fundamental rights of that democracy, which is
voting representation in the Congress.
You know, I was thinking the other day what the reaction
would be in Congress if for some reason the residents of Boston
or Nashville or Denver or Seattle or El Paso had no voting
representation here in Congress, and I pick all of those cities
because they are about the same size as Washington, DC. The
reality is that the Nation would not let those citizens go
voiceless in Congress. So is it only because this injustice has
gone on for so long that we tolerate it here in our Nation's
capital?
Obviously, citizens of the District pay Federal taxes. They
serve and die in war. Yet, they are denied this fundamental
right. Even though they pay taxes, they have no say about how
those taxes are levied or on what priority that money from
their taxes may be spent.
The vote is a civic entitlement of every American citizen.
It is democracy's most essential right and our most effective
tool. The citizens who live in our Nation's capital deserve
more than a non-voting delegate in the House. Notwithstanding
the extraordinarily strong service of the Hon. Congresswoman
Eleanor Holmes Norton, who is with us today, non-voting
representation just is not good enough. As all who are here, I
presume, know, while Ms. Norton may vote in committees, she
cannot vote on the House floor. That is wrong and must be
changed.
That is why I am proud to be the Senate sponsor of the No
Taxation Without Representation Act, which Congresswoman Norton
has introduced in the House. I am delighted that Senator Russ
Feingold, who is also an original sponsor of the legislation,
is with us today.
Of course, the name of our legislation is taken from our
own revolutionary history because our forbearers went to war
rather than pay taxes without being represented. The citizens
of our capital city express by this movement that they believe
in the principles the Nation's revolutionary heroes established
and they want to benefit now from them.
The bill's title, No Taxation Without Representation, is,
if I might say so, pointed and ironic. Obviously, what the
people of the District seek is voting representation, not
exemption from taxes. In fact, the bill states in its first
operative paragraph that District of Columbia residents shall
have full voting representation in Congress. The tax provision
is in the bill for effect, to remind us of this fundamental
American principle that gave birth to our Nation and of the
fact that no other taxpaying Americans are required today to
pay taxes without representation in Congress.
A recent national poll was of interest to me on this
subject and it showed that a majority of Americans believe that
District residents already have Congressional voting rights.
You cannot blame them for that because it is so unbelievable
that residents of the District do not have voting rights. But
interestingly, when those who were polled were informed that
District residents do not have voting rights, more than 80
percent said that they should.
Well, if we can right this wrong, we would, in that sense,
therefore, not only be following the will of the American
people, we would be advancing the cause of our Nation's
historic destiny and, of course, fulfilling our responsibility.
When we placed our capital, which was not established in
their day, under the jurisdiction of Congress, the Framers of
our Constitution, in effect, placed with Congress, I think, the
solemn responsibility of assuring that the rights of the
citizens of the District would be protected in the future.
Congress has failed to meet this obligation now for much too
long.
In the words of this city's namesake, our first President,
``Precedents are dangerous things. Let the reigns of government
then be braced and held with a steady hand and every violation
of the Constitution be reprehended. If defective, let it be
amended, but not suffer it to be trampled on whilst it has an
existence.''
People of the District of Columbia have suffered this
constitutional defect for far too long, so let us reprehend it
and amend it together.
I look forward to hearing from all of the witnesses today
and I am pleased now to be joined by Senator Durbin, who is
also a cosponsor of this legislation, and would call on him now
for an opening statement.
OPENING STATEMENT OF SENATOR DURBIN
Senator Durbin. Thank you, Mr. Chairman, for scheduling
this hearing to explore the important question of whether the
citizens of the District of Columbia should be granted full
voting representation in Congress, and I salute your leadership
on this issue.
I am Chairman of the District of Columbia Authorizing
Subcommittee and a member of the D.C. Appropriations
Subcommittee. I have served in that capacity over the last 4
years. I have lived part-time and occasionally full-time in the
District of Columbia for about 39 years, so it really has been
a second home to me, in addition to my State of Illinois, and I
have watched a lot of changes in the District of Columbia. I
never dreamed that I would be in this position in the U.S.
Senate to help this great city.
But we have passed some important legislation restoring the
management and personnel authority of the D.C. Mayor,
establishing a program to afford D.C. high school graduates the
benefits of in-State tuition at State colleges and universities
outside the District, permitting Federal law enforcement
agencies to enter into cooperative agreements with D.C.
Metropolitan Police, establishing a specialized family court,
authorizing the redevelopment through the GSA of the Southeast
Federal Center, and many other things.
What I have found interesting in 20 years of service in
Congress, and I am sure that Congresswoman Norton would agree
with me on this, is how many men and women run for the House of
Representatives and for the Senate when their secret desire is
to be a mayor, because time and again, when issues come up
involving the District of Columbia, these men and women who
could not wait to get to Washington want to perform the role of
mayor and city council when it comes to the District of
Columbia. [Laughter.]
It is startling. There are times, and Congresswoman Norton
can back me up on this, when these people will condemn in the
District of Columbia the very programs that they have at home.
They would not have the nerve to bring up these issues at home,
but because the District of Columbia is almost voiceless on
Capitol Hill but for your heroic efforts, without a vote, they
feel that they can make some sort of a political point. It is
nothing short of amazing to watch this spectacle unfold.
Now, I have also over the years taken exception with
decisions by the D.C. City Council and I have been pretty vocal
about them. But I have always tried to draw the line at taking
exceptions. I do not believe it is my role, responsibility, or
right to impose my views on the people of the District of
Columbia when it comes to their sovereignty and their judgment
of governance. I think that is one of the fundamental elements
of a democracy and it is one that has been ignored by this
Congress time and time again.
It is long overdue for the 572,000 residents of the
District of Columbia to have their voice on Capitol Hill, to
have a voting Congressman, voting Senators, and to have
representation that speaks for them with a vote in these two
chambers. I think we have reached the point where we cannot
make excuses any longer.
Now, we all know why the District of Columbia is not a
State, because, frankly, there are those who have made the
political calculation that it may tip the scales one way or the
other. But for goodness sakes, is that not what democracy is
all about, to let the people tip the scales as they see fit
with their right to vote?
Thank you very much, Mr. Chairman, for this hearing.
Chairman Lieberman. Thank you, Senator Durbin, for your
support of the bill and for your excellent statement.
Senator Levin, thank you for joining us.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Thank you very much, Mr. Chairman, and thank
you for calling this hearing on a very fundamental issue, one
of the issues that this country was founded upon.
There are just simply no ``if''s, ``and''s, or ``but''s
about it. We must correct the denial of representation which so
unfairly and undemocratically locks the District of Columbia
residents out of Congress. District residents share the same
characteristics of citizenship as the residents of the 50
States. They serve in the military. They have lost their
husbands and wives, their sons and their daughters in foreign
wars, defending our government. They study the Constitution and
the obligations of citizenship. They say the same pledge of
allegiance to the flag as every other American does. They are
governed by the laws of the United States. They pay Federal
taxes, in fact, more Federal taxes per capita than the
residents of any other State but one.
Yet, because the District is not recognized as a State and
because of our failure to act for so long, D.C. residents do
not have the full voting representation in Congress that they
deserve.
I would ask that the balance of my statement be inserted in
the record, Mr. Chairman, because I know you want to proceed
with this hearing, but I want to just commend our first panel
for all of the tremendous work that they have done. I would
also like to commend the Delegate who is before us, Eleanor
Holmes Norton. You have performed very nobly under very
difficult and limited circumstances which should end.
Chairman Lieberman. Thanks, Senator Levin. Thank you very
much.
[The prepared statement of Senator Levin follows:]
PREPARED STATEMENT OF SENATOR LEVIN
Good afternoon. Thank you, Mr. Chairman, for holding this hearing
on one of the most fundamental issues upon which our country was
founded--the right to representation in making the laws that govern
you. There are no ``ifs,'' ``ands'' or ``buts'' about it. The time is
long past due to remedy the denial of representation which unfairly and
undemocratically locks District of Columbia residents out of Congress.
District residents share the same characteristics of citizenship as
the residents of the 50 states: they serve in the military and have
lost their husbands and wives, sons and daughters, in foreign wars
defending our form of government; they study the Constitution and the
obligations of citizenship; they say the pledge of allegiance to the
flag; they are governed by the laws of the United States; and they pay
Federal taxes, in fact more Federal taxes per capita than the residents
of any other State except Alaska.
Yet--because the District is not recognized as a State, and because
of our failure to act for decades, D.C. residents do not have full
voting representation in Congress. That means, very simply, that they
are taxed without representation.
I have not cosponsored S. 603, the No Taxation Without
Representation Act, because while I understand the depth of frustration
reflected in the provision in the bill that would allow citizens of the
District to stop paying taxes until they get voting representation, I
can't support that provision. Like residents of the 50 States,
residents of the District of Columbia receive the protection of our
military, the benefits of our social programs, our court system, and
the freedoms guaranteed by our Constitution. However, I believe that
full congressional representation should be adopted for the citizens of
the District of Columbia, and I support legislation to do that. That
action is long past due. Hopefully, the time will soon come, and this
hearing can help make that happen.
I welcome all of our distinguished panelists. Delegate Eleanor
Holmes Norton, clearly we would not be here today without your
steadfast leadership and your commitment to bring justice to the people
of the District. We've had great communication with your office during
the years on a number of matters, and I have a deep appreciation for
you and your dedication to this city.
To Representative Eddie Bernice Johnson, Chair of the Congressional
Black Caucus, Wade Henderson of the Leadership Conference on Civil
Rights, with whom I have been engaged on many issues, Mayor Anthony
Williams, D.C. Council Chair Linda Cropp, Statehood Senator Pendleton,
Professor Adam Kurland, and Professor Jamin Raskin, we are pleased that
you are here.
I know your testimony will further enlighten this Committee and
hopefully advance the ball on this important issue.
Chairman Lieberman. Senator Feingold, if you have the time,
it would be my inclination to call on Congresswoman Norton
first. It is a pleasure to be your cosponsor, your coworker,
and without revealing exact dates, to have been your friend and
classmate at Yale Law School some considerable period of time
ago. [Laughter.]
The Hon. Eleanor Holmes Norton.
TESTIMONY OF HON. ELEANOR HOLMES NORTON,\1\ A REPRESENTATIVE IN
CONGRESS FROM THE DISTRICT OF COLUMBIA
Ms. Norton. I thank you, Mr. Chairman, and for the record,
I want you to know that I was ahead of you.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Norton appears in the Appendix on
page 38.
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Chairman Lieberman. That is very gracious of you. I was not
going to reveal that. [Laughter.]
You are looking very well. [Laughter.]
Senator Levin. I just wonder if the rest of us should
excuse ourselves while these two just have their conversation.
[Laughter.]
Ms. Norton. I did not say by how much----
Chairman Lieberman. It was close.
Ms. Norton [continuing]. But I thought I had to lay the
record straight there lest I get an advantage to which I am not
entitled.
I begin by thanking you, Mr. Chairman, not only for
introducing the No Taxation Without Representation Act, but for
going further and holding this hearing on the voting rights
provision of the bill. Ever true to high principles, you have
always supported equal treatment for the residents of the
District of Columbia, unfailingly stepping forward to lead and
supporting bills for equal representation for D.C. residents.
You have already brought the No Taxation Without
Representation Act to the Senate floor during the debate on
election reform in February. You submitted the bill as an
amendment to the election reform bill because you said you
believe that the voting rights issues raised in Florida in the
2000 Presidential election only served to spotlight the denial
of any vote at all in Congress to D.C. residents. By agreement
with us and all concerned, your amendment was withdrawn until
the bill is fully ready for vote.
However, in your remarks, you said that you hope the
discussion of the No Taxation Without Representation Act on the
Senate floor, a discussion of D.C. voting rights, the first
discussion of D.C. voting rights on the Senate floor in memory,
would help educate the Senate about the denial here in
preparation for granting D.C. the Congressional vote.
I come today on the heels of a highly successful D.C. Lobby
Day, last Wednesday, when more than 250 residents, energized by
your bill in the Senate, visited every Senate office to seek
cosponsors. The sponsors of the Lobby Day, the Leadership
Conference on Civil Rights, People for the American Way, D.C.
Vote, and Stand Up for Democracy, are in the throes now of
making follow-up calls for final answers on sponsorship. I want
to thank the Senators who are signing on now with a dozen
cosponsors on the bill and follow-up calls still being made.
The significance of the first citywide Lobby Day in the
Senate was not lost on another strong supporter, Majority
Leader Tom Daschle, who graciously agreed to meet with leaders
of the coalition, the city, and the business community, as well
as the Chair of the Democratic National Committee, on the
morning of Lobby Day.
I want also to thank Senator Max Baucus, who with you and
Senator Daschle have worked to make clear that the only point
of our bill is and always has been to achieve voting rights and
its proper place in this Committee for that purpose. My special
thanks also to your able and energetic staff for the
magnificent work they have done since you introduced the bill.
We will hear from others today about the damage to
democracy and to the District because D.C. residents are denied
the Congressional vote. I believe I can be most useful if I
testify briefly from the unique perspective of the one official
District residents are permitted to send to Congress.
Beyond notions of fairness and equality, the role of the
one non-voting delegate whose constituents pay Federal income
taxes points up the absurdity of the present arrangement for us
and for the Congress. At best, antiquated, inefficient, quite
unintended by the Framers, and embarrassing. At worst,
discriminatory, undemocratic, and shameful.
The District is seriously harmed by having no
representation in the Senate. I have the same privileges on the
Senate floor as any House member, but even when the D.C. budget
is before you, I can be on the floor, but not speak on the
floor on our own budget. To its credit, the House has extended
to delegates every privilege of the House except, of course,
the most important, the vote on the House floor. The House has
long allowed delegates the valuable vote in Committee. In
response to the memo I submitted in 1993, the House even
changed its rules to allow delegate voting in the Committee of
the Whole, where most of our work is done.
However, Mr. Chairman, measure the Nation's high-sounding
rhetoric about democracy, preached unceasingly, particularly
today, against the reality that even this delegate vote, which
was not the full right other members enjoy, was rescinded by
rule when the Republicans gained control of the House.
The indignities to the residents I represent know no
bounds. My testimony today will consist of a few among many
examples that could be offered to demonstrate this point. It is
useless and redundant and insulting enough to our Mayor,
Council, and residents, alone in this country who are treated
as children by the requirement to send their balanced budget to
the Congress, where it is often toyed with and decorated with
undemocratic attachments, while I press Congress to allow a
local jurisdiction to spend its own local taxpayer-raised
money.
After struggling every year to get the D.C. budget to the
floor, 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 on 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.
Sometimes life and death issues have been at stake, such as
when, without a vote, I had to fight off two bills that would
have wiped out all of the District's gun laws in 1999 in the
House, or when the Senate with no representation in this body
forced a death penalty referendum on the District that the city
turned back two-to-one in 1992.
Even the voting rights that D.C. has won have not been
fully realized. Lacking the vote during the House impeachment
proceedings, my only recourse to preserve D.C.'s 1996
Presidential vote, as guaranteed by the 23rd Amendment, was to
bring a privileged resolution to the House floor. I argued that
the vote for President that residents had cast required that a
D.C. vote also be cast in the House concerning whether the
President should be removed from office. The Speaker ruled
against the District.
Yet never, Mr. Chairman, have I felt more deeply about the
denial of the vote to our residents than when our Nation has
been called to war. I spoke but could not vote on the
commitment of troops in the Persian Gulf War and most recently
on the resolution authorizing the war against terrorism.
I know you understand how deeply the denial of the vote in
time of war cuts, Mr. Chairman. You said as much in your
remarks on the Senate floor when you submitted the No Taxation
Without Representation Act as an amendment to the election
reform bill. You said that D.C. residents have
disproportionately suffered casualties in America's wars. You
informed the Senate that in World War I, the District suffered
more casualties than three States, in World War II, more
casualties than four States, in Korea, more casualties than
eight States, and in Vietnam, more casualties than ten States.
I believe it is fair to say that the examples in this
testimony would shock most Americans, the great majority of
whom say in the polls that we should have the Congressional
vote. The examples I have cited and many more like them stand
out like a disfiguring scar that, at best, robs our country of
international credibility, and at worst, leaves us open to
charges of hypocrisy.
The denial of the vote to the 600,000 citizens who reside
in the Nation's capital stunts the otherwise determined logic
and progression about democracy, the 14th Amendment
guaranteeing equal protection of the laws, the 15th Amendment
guaranteeing the vote regardless of race, the 17th Amendment
providing for direct popular election of Senators, the 19th
Amendment enfranchising women, the 23rd Amendment affording
District residents the right to vote for President, the Supreme
Court's ``one person, one vote'' decisions, the 1965 Voting
Rights Act barring impediments to voting regardless of race.
Today, we ask the Congress that brought us this far along
the way to democracy and equality not to stop now. Do not hold
back the tide. The Senate saw that tide roll into this chamber
on Lobby Day. D.C. residents came here in large numbers for the
first time to show that they are free Americans, that the
Senate is not off limits to them, and that they are entitled to
representation here.
Today, we ask the Senate to respond to these D.C. residents
who represented the entire city when they came to lobby last
Wednesday. We ask you to give them what they are due as
Americans. We ask you to give them the Congressional vote that
is the democratic hallmark of our republic. We ask you to pass
the No Taxation Without Representation Act and we thank you,
Mr. Chairman.
Chairman Lieberman. I thank you, Delegate Norton, for your
eloquent statement and for your passionate advocacy and I look
forward to continuing to work with you in this cause.
It is very important to state, I think, that neither of us
or those at the table with you who support this cause or
Senator Durbin and I have any illusions about the political
difficulties in advancing it. But our hope in introducing the
No Taxation Without Representation proposal was to bring our
colleagues, and hopefully others throughout the country, back
to the principle that you have just spoken to so effectively,
which is this outrageous reality that 600,000 Americans are
denied full voting rights in the year 2002.
So by one way or the other, I know that you and I and
Congresswoman Johnson, Senator Feingold, Senator Durbin, and
others are committed to continuing to push forward until we are
able to not only create or at least encourage, if not coerce,
people to express the consensus that is undeniable, that this
is wrong, and then to figure out how we together can go forward
to make it right.
Congresswoman Eddie Bernice Johnson from Texas, Chair of
the Congressional Black Caucus, thank you very much for taking
the time to come and join us today.
TESTIMONY OF HON. EDDIE BERNICE JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Ms. Johnson. Thank you very much, Mr. Chairman. It is my
privilege to testify before the Senate Governmental Affairs
Committee today on behalf of the 38 members of the
Congressional Black Caucus. We salute you, Mr. Chairman, for
your stand-up leadership in moving to eliminate discrimination
in representation endured for too long by the citizens of the
capital of the United States.
Thank you for leading the Senate in sponsoring the No
Taxation Without Representation Act and for holding this
important hearing on the bill. All 38 members of the
Congressional Black Caucus are sponsors of the bill in the
House. Congress gave the District of Columbia the right to
elect a delegate to the House shortly after the Caucus was
founded in 1969. The D.C. Delegate has always represented
people of all races equally. However, from the beginning, the
Congressional Black Caucus took special umbrage that a member
of our Caucus whose constituents paid Federal income taxes
could not vote on the House floor.
Today, Mr. Chairman, 32 years after the District got a
delegate in this century, and 33 years after the formation of
the Congressional Black Caucus, our umbrage has become anger.
The CBC was formed during a high point of the civil rights
movement and our members have always felt a special obligation
to the District because the city is largely an African American
city. A member of our Caucus has been deliberately handicapped
in her work by the Congress. Although she is in every way equal
to the rest of us, especially in the Federal income tax her
constituents pay, she is treated unequally in the House in
which we serve because of the intentional denial of voting
representation to her constituents, and even more unequally in
the Senate, where her constituents are without any
representation.
Congresswoman Eleanor Holmes Norton knows how to use her
considerable voice and intelligence to benefit her
constituents, but she has to do it with one hand tied behind
her back. However, the Caucus concern goes well beyond the
regard we have for one of our own or the special effort the CBC
makes to help ensure that the District's interests are
protected in the House, where residents have no vote.
African Americans in this country identify strongly with
the denial of voting representation to the District of
Columbia. More than half of the districts of the Congressional
Black Caucus members experienced a similar denial in Congress
until the passage of the Voting Rights Act of 1965, including
my own State of Texas. We emphasize that we of the
Congressional Black Caucus make no difference based on race in
our insistence on the sanctity of the vote and of the right of
all people to a full and equal vote. We have worked hard on an
election reform bill that is now before the House--and before
that was precipitated by the 2000 Presidential election that
robbed thousands of citizens of every race and ethnic
background of their vote and determined an outcome at odds with
the popular vote.
However, if you want to get African Americans in this
country angry today, just tell them that there is a majority
black city anywhere in America where blacks and other Americans
are treated as second-class citizens. Tell them that city is
our Nation's capital and you spur them to especially strong
action.
We are engaged in such action today. The CBC, like the
Leadership Conference on Civil Rights, has made the No Taxation
Without Representation Act a priority. Our constituents expect
no less from us because Congressional voting rights for the
District of Columbia residents is a civil rights issue of
historic importance whose time is long overdue. Many African
Americans question the commitment of Members of the Congress to
equal treatment if Members are timid about equal Congressional
representation for all taxpaying Americans, including the
residents of our capital. The denial of voting rights to
taxpaying Americans who have fought in all of our wars raises
profound moral issues.
If we are to fight terrorism and help create democratic
institutions abroad, we must first clean our own house. Our
Nation is the leader of democracy and freedom and I find it
incredulous that we deny the vote to 600,000 residents in the
high-profile capital of this country.
Let me assure you, Mr. Chairman, Congressional voting
rights for the citizens of the Nation's capital has the laser-
like attention of the Congressional Black Caucus. Our members
and our constituents are watching. We ask the rest of the
Senate to follow your lead and we ask that the Senate please
not let us down. I thank you very much.
Chairman Lieberman. Thank you, Congresswoman Johnson, for
an excellent and very principled statement. I appreciate it
very much.
Senator Feingold, thanks for being here. There are probably
those in America who think that Senator Feingold's first name
is McCain. [Laughter.]
But it is Russell, Senator Russell Feingold, and I cannot
thank him enough for joining me in this effort in the Senate
because he really brings to it the same principle, personal
principle, and sense of purpose that he brought to campaign
finance reform. It took him a while, but he got it done. It may
take us a while, but we are going to get it done. Senator
Feingold.
TESTIMONY OF HON. RUSSELL D. FEINGOLD,\1\ A U.S. SENATOR FROM
THE STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. My official name
change is going to come through before the next election. It
will look good on the ballot. [Laughter.]
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\1\ The prepared statement of Senator Feingold appears in the
Appendix on page 41.
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Thank you for inviting me to join you today and for
allowing me to make a brief statement in support of our effort
to secure full voting representation in Congress for the
residents of the District of Columbia. I want to commend you,
Mr. Chairman, as the others have, for your leadership and your
work on this and your comments about how truly unbelievable it
is that this can be the case in the United States of America in
the year 2002. I want my colleagues in the House to know that
when my constituents in Wisconsin find out about this, they are
surprised, astonished, and they do not think it is right, and I
am hoping that this is a message that can get clear throughout
the country.
I am very pleased, in fact, honored to be here today with
Delegate Eleanor Holmes Norton. She has been a longtime,
tireless champion of this important issue in Congress. It is an
honor to work with her and with the Chairman and, of course,
with Representative Johnson. I recently benefitted from her
tremendous leadership skills in that very ability you were just
kidding me about. Were it not for Representative Johnson and
her leadership, I am not at all sure that we would have
succeeded in the House of Representatives, and that bill had to
do with the integrity of the vote and this one has to do with
the right to vote, which is even more fundamental. So I thank
you for your help on that.
Mr. Chairman, our Nation, the greatest democracy on earth,
was born out of a struggle against taxation without
representation. Before the Revolutionary War, the British
Government levied taxes on American colonists, but while these
colonists were required to pay taxes to the British Government,
they had no say, no voice, no power over how they would be
governed. Just a few years before the first battle of the
Revolutionary War, the British continued the imposition of
Federal taxes with the Stamp Act and the Sugar Act.
As we all know, in 1773, the Boston Tea Party took place.
American colonists raided the three British ships in Boston
Harbor and threw the tea overboard to protest the British tea
tax. Soon thereafter, the colonists began to mobilize and to
fight for independence, and ``no taxation without
representation'' became a rallying cry. A few years later, of
course, after a long and hard-fought struggle, a free and
independent America was born.
Yet more than 200 years later, Mr. Chairman, Americans in
the District of Columbia, home to over half-a-million
residents, remain disenfranchised. They are in a situation not
all that different from that of the American patriots who
fought so hard and sacrificed their lives to someday live free.
Mr. Chairman, when the District of Columbia was created as
our Nation's capital 200 years ago, its residents lost their
right to full Congressional representation. These Americans, as
we have pointed out, served in our Nation's Armed Forces, pay
Federal taxes, and keep our Federal Government and capital city
running day and night. They live in the shadows of the
monuments of our forefathers and in this country's most highly
praised defenders of democracy.
They fight and die for this country in armed conflict, and
yet they have no voice in the Senate and only a limited voice
in the House. They do not even have the right to vote on basic
administrative matters that other States and cities decide for
themselves. Virtually every other Nation grants the residents
of its capital city equal representation in its legislature. It
is simply an embarrassment that in these modern times, we, as
the world's most powerful democracy, deny voting representation
to over half-a-million Americans.
Since the ratification of the Constitution in 1788, the
United States has forged its own suffrage history, guaranteeing
the right to vote to all Americans regardless of race, gender,
wealth, marital status, or land ownership. Through our
interpretation of the ``one person, one vote'' doctrine, we
have made great strides in overcoming inequality and under-
representation. There remains, however, this unresolved
obstacle to suffrage for all Americans, the disenfranchisement
of D.C. residents.
Mr. Chairman, it is past time for Congress to undo this
injustice, and so I was pleased to join you earlier this year
as a cosponsor of the amendment that Representative Eleanor
Holmes Norton mentioned to the election reform bill on the
issue of voting representation for D.C. residents. I am told
that this was probably the first time since 1978, when the
Senate considered a constitutional amendment, that the issue of
voting representation for D.C. residents was even debated on
the floor of the Senate. After debate, you withdrew the
amendment, but it was important to begin debating this issue in
the Senate again. It is long overdue.
So I again commend you, Mr. Chairman, for continuing the
debate by holding a hearing on this issue today. Particularly
at this time when D.C. residents are members of our Nation's
military, the National Guard, the Capitol Police, who are
serving in so many other important roles to fight terrorism and
to protect our Nation from future terrorist attacks, it is, in
fact, shameful, to pick one of the words that Representative
Norton used, it is shameful that we deny them the right to full
representation in Congress.
It is past time for Congress to act. I urge our colleagues
to join Senator Lieberman and me as cosponsors of the No
Taxation Without Representation Act. This is an important bill
to send a message that taxation without representation is
unfair and un-American, and so I urge my colleagues to join us
in ensuring full voting representation for Americans who call
the District of Columbia their home. Thank you for the
opportunity, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Feingold, for an
excellent statement.
I thank the three of you. Obviously, I have a position
here, but I think the three statements have been very eloquent
and moving and speaking from principle. I cannot say clearly
enough that your presence and your words, as well as those of
Senator Durbin and Senator Levin, both of whom had to go, make
the point that we are not engaged here today in an act of
symbolism. We have begun again a very serious effort to obtain
what the citizens of the District of Columbia deserve under our
Constitution, which is full voting rights and full
representation, and we are going to continue in every way we
can on every field we can to fight for this until we achieve
it.
Our numbers are growing. Your words encourage me and I look
forward to working with you until we achieve the victory we all
seek. Thank you very much, the three of you.
We will call now on the second panel, who represent the
Government of the District of Columbia and representation from
the District of Columbia, Hon. Anthony Williams, Mayor of the
District of Columbia, the Hon. Linda W. Cropp, Chair of the
Council of the District of Columbia, and the Hon. Florence H.
Pendleton, District of Columbia Statehood Senator.
I also want to welcome Senator Pendleton's two colleagues,
Statehood Senator Paul Strauss and Statehood Representative Ray
Brown, who are also here today. If the two of you are here, why
do you not stand. I thank you for all you have done. You are
already acting like full-fledged Members of Congress by
yielding to Statehood Senator Pendleton on the basis of
seniority. [Laughter.]
But we thank you for what you have done on behalf of this
cause.
Mayor Williams, thanks for being here. I know if I dwell
for too long on our Yale contacts, I will be considered to be
parochial, but I do want to state for the record that you were
there long after I was. [Laughter.]
I say as a matter of personal privilege, which you know,
how proud I am to have watched your career come from Yale
undergraduate to Lieberman ward worker to member of the Board
of Aldermen in New Haven, to official of the State of
Connecticut Government, to official of the Federal Department
of Agriculture, to the Emergency Financial Board--I am not
giving the right title to it--and then to be a truly superb
Mayor of this Nation's capital city. I do not get the chance to
do that too much on the record, and with those words, I welcome
you and look forward to your testimony now.
TESTIMONY OF HON. ANTHONY A. WILLIAMS,\1\ MAYOR, DISTRICT OF
COLUMBIA
Mayor Williams. Mr. Chairman, let me thank you, when you
are Mayor, you will take compliments wherever you can get them,
and I appreciate your remarks. I really do. [Laughter.]
---------------------------------------------------------------------------
\1\ The prepared statement of Mayor Williams with an attachment
appears in the Appendix on page 44.
---------------------------------------------------------------------------
Thank you for your leadership over these years, not only in
regards to the District but in general, on a national level and
certainly for Connecticut. You have my appreciation and
certainly my recognition as a friend and as your Mayor while
you are here in Washington.
Chairman Lieberman. Thank you.
Mayor Williams. I want to take the opportunity as Mayor of
our city and on behalf of the citizens of our city to also
commend Senator Levin and Senator Durbin for coming in here
today and pledging their support for an important effort.
As you mentioned, more than 200 years ago, the founders of
this country fought a revolution to end the tyranny of taxation
without representation and I have no doubt that the authors of
the Constitution did not intend to force almost 600,000
Americans to live under that same tyranny in the 21st Century.
In fact, this body was established to create and amend laws as
the needs of the people required. We are here today because a
need has arisen, because you are vested with a power and a
responsibility to make sure all Americans can exercise their
rights.
Full voting representation in Congress is a fundamental
right held by every citizen of the District of Columbia. You
have acted on behalf of disenfranchised women. You have acted
on behalf of disenfranchised African Americans, Latinos, Native
Americans, and other groups, and we now ask that you act on
behalf of disenfranchised citizens of our Nation's capital and
pass the No Taxation Without Representation Act.
As Mayor of this city, I have had the privilege of
representing our city across this country and abroad, from
school children visiting our monuments to athletes
participating in the Olympics, from diplomatic delegations
working here in the District to State and local elected
officials meeting in Washington. I have been amazed at the
myths and misconceptions held about the power and status of the
District of Columbia and they mirror your remarks, Mr.
Chairman. I would like to share just a few.
The Federal Government completely funds the District
Government. That is a myth. There are no real people living in
Washington, perhaps only pundits and Beltway Bandits.
Washington residents already have full voting rights and
complete self-government. Another one, Washington residents all
have a second address and, therefore, representation in another
State, and so what is the problem?
To be clear about many of these and other myths, you should
know that the budget for the District of Columbia is funded
primarily by the people who live and do business in this city.
Yes, the District receives some Federal funding, virtually the
same amount as other cities our size receive from the Federal
Government, but not nearly at the same level required to ensure
the consistent delivery of essential services and certainly not
commensurate with that provided by other nations to their
capitals.
Almost three-fourths of our operating budget comes from our
local tax revenue, property tax, income tax, and business
taxes. In fact, our residents are some of the most heavily
taxed people in the country. I am not proud of that and I do
not advertise that too much, but it is a fact.
There are more than 572,000 real people living within ten
square miles known as the District of Columbia. These are
people who attend school, who work, who raise families, who pay
taxes, both Federal and local, and it has been mentioned in
testimony and in your comments, Senator, that we are the second
highest Federal tax-paying citizens per capita in the country.
It has been mentioned we serve in the Armed Forces, and in
many parts of the District, we live on fixed incomes. And while
a few of our residents come here and serve in the Federal
Government and maintain a permanent address elsewhere, the vast
majority do not. These are people who love their country, and
in the wake of September 11 are keenly aware of what can be
demanded of them during a national emergency.
Washington residents were granted the right to vote for
President in 1961, but we do not have full representation in
the House and Senate. When legislation that directly affects
our lives is drafted, debated, and adopted, we have virtually
no voice in the process. Our residents elect a Mayor and 13
members of the Council, a Chair of the Council, but every local
law and every local budgetary decision made by this elected
body must be approved by Congress, and this Council passes an
endless series of emergency acts and temporary acts, and I see
the enormous amount of paperwork to keep our government going
while waiting for Congress to officially approve our
government's action.
No other jurisdiction in the country must submit its local
budget to an outside authority elected by people from other
States. No other jurisdiction must wait to invest funds in new
programs while Members of Congress decide what is appropriate
for the District.
Over the years, the District of Columbia evolved into a
living, breathing city, a city where streets need to be paved,
homes built, children educated, trash and snow removed, trees
trimmed, people protected from crime, and homes protected from
fire. It became a city that needed to provide services to all
of its residents and businesses, including those who live at
1600 Pennsylvania Avenue and those who work and act as
legislators on Capitol Hill.
I am proud of the progress the District has demonstrated in
the last several years. Last week, the Labor Department
reported that the District has seen job growth in the last few
months while surrounding jurisdictions have experienced a
growth in unemployment. Over the past 5 years, we have balanced
the budget, maintained the cash surplus, improved our credit
rating, and met every goal set out by Congress to demonstrate
the ability to self-govern. The District is on the verge of
achieving its full potential as the heart of a vibrant region
in a global economy, but to do so, we must be put on a level
playing field.
As you know, Senator, and all of us know, Webster defines
democracy well as, I quote, ``A government in which the supreme
power is vested in the people and exercise by them directly or
indirectly through a system of representation, usually
involving periodically held free elections.'' I say to the
Committee, why are the people of the Nation's capital excluded
from this system of representation?
Well, the lack of voting rights is an economic issue in the
District of Columbia. While the Congress has the power to
impose restrictions on our city and limit our ability to tax,
we will never have a level playing field. More than 50 percent
of our land cannot be taxed. Income earned in the city commutes
to Maryland and Virginia every day. We export dollars out of
our city. State functions such as road construction, motor
vehicle administration, and special education must be funded on
the city's tax base. How can we continue to grow and be
fiscally responsible when the city leaders have no authority
over their own financial resources and no representation to
negotiate with Congressional members?
If the District had full voting rights, our representation
could work towards greater parity for District residents and
greater parity for the District with other jurisdictions across
this region and the country.
The lack of voting rights is a matter of justice in the
District of Columbia. The inability of District residents to
vote for voting Representatives and Senators in Congress
violates our rights to equal protection and to a republican
form of government.
In the court case for full voting rights, Alexander v.
Daley, the court did not determine that District citizens
should not have voting rights. It determined that the courts
lacked the power under the U.S. Constitution to require
Congress to grant such rights. Congress has the opportunity and
the power to correct this injustice by taking action now to
guarantee justice by granting the citizens of the District
their full voting rights.
Finally, the lack of voting rights is a civil rights
violation in the District of Columbia. African Americans and
women and others have fought for and died for the right to
vote, yet here in the capital of democracy lives one of the
largest blocks of disenfranchised voters in the world. District
residents fight for freedom abroad and pay more than $2 billion
a year in Federal income taxes at home as the world's leading
democracy. It is unacceptable that the United States does not
grant voting rights to the residents, to the citizens of this
capital city.
The issue of District voting rights has resonated across
the country. A number of local and national organizations have
taken actions in support of full voting rights for our city,
and I want to commend Shadow Representative Ray Brown for his
leadership and support in this effort. Such organizations
include the National League of Cities, the National Conference
of Black Mayors, and the Executive Committee of the U.S.
Conference of Mayors, which have all passed resolutions or
adopted policy positions in support of the District.
In addition, resolutions from cities across the country
supporting voting rights have been adopted by the cities of
Chicago, Philadelphia, Cleveland, Baltimore, Los Angeles, New
Orleans, and San Francisco, and as you have mentioned, Mr.
Chairman, national polls indicate that a huge majority of
people across the country support full representation for
District residents. I ask that these resolutions be entered
into the record of this Committee hearing.\1\
---------------------------------------------------------------------------
\1\ Memorandum and Resolutions submitted by Mayor Williams appear
in the Appendix on pages 89 through 109.
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Chairman Lieberman. Without objection.
Mayor Williams. Once again, Mr. Chairman, I commend you for
your leadership in general, your support for this city in
voting rights in particular, and as always, I am ready,
willing, and able to answer any questions you may have. Thank
you for the opportunity to testify.
Chairman Lieberman. Thank you, Mayor. We will have some
questions. Thanks for describing not only the cause and the
principle here, but the practical realities of the interaction,
including the additional fiscal responsibilities placed on the
city as a result of the presence of the Federal Government here
and how that adds to the injustice of no voting representation.
Chairwoman Cropp, thank you for being here. I look forward
to your testimony now.
TESTIMONY OF HON. LINDA W. CROPP,\2\ CHAIRMAN, COUNCIL OF THE
DISTRICT OF COLUMBIA
Ms. Cropp. Thank you very much, Chairman Lieberman. Good
afternoon. Let me begin by thanking you, Mr. Chairman, for
sponsoring legislation and holding this public hearing on the
denial of voting representation in Congress for the 600,000
American citizens who live in the District of Columbia.
---------------------------------------------------------------------------
\2\ The prepared statement of Ms. Cropp with an attachment appears
in the Appendix on page 53.
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This is the first Senate hearing on District voting rights
in an extremely long time, so we very much appreciate this
historic opportunity to urge you and your colleagues to use the
power that you have to bring democracy to the Nation's capital.
I am joined today with Adrian Fenty, another member of the
Council.
Attached to my testimony is a resolution and report adopted
unanimously by the D.C. Council earlier this month supporting
the No Taxation Without Representation Act that has been
introduced by you, Senator, and Senator Feingold in the Senate
and Congresswoman Norton in the House. The Council's findings
in the resolution essentially mirror the findings contained in
the No Taxation Without Representation Act that I would like to
highlight here.
For far too long, District citizens have been invited to
dinner, but we have not been allowed to eat. As you know, U.S.
citizens residing in Washington, DC, have no voting
representation in the House and no elected voice in the Senate.
This was not always the case. For approximately 10 years after
ratification of the U.S. Constitution and selection of the
Federal District, residents of the District of Columbia were
allowed to vote for Members of Congress. In 1800, Congress
voted to end this practice and thereby disenfranchised District
residents.
Throughout the past two centuries, there have been various
efforts to restore the franchise. There are many reasons full
voting rights should be restored, but each evolves from a
single principle: The right to vote is a fundamental principle
of our democracy. Americans throughout the Nation agree, or
would agree if they knew. Many, as you have heard from our
Mayor, just do not believe that we do not have the right to
vote. I have encountered them on numerous occasions.
A survey conducted in October 1999 found that 72 percent of
the respondents supported full voting rights in the House and
Senate for District residents. The same poll showed high levels
of support across party lines. Polling conducted a month later
found that 55 percent of college graduates who were registered
to vote were unaware that District citizens do not have
Congressional voting representation.
You have heard these facts before, but until there is a
remedy to the fundamental injustice of our subordinate status,
they must be reiterated. The residents of the District of
Columbia are the only Americans who pay Federal income taxes
but are denied voting representation in the House and the
Senate. The District of Columbia is second per capital in
income taxes paid to the Federal Government. The District is
the source of over $2 billion in Federal taxes each year, an
amount per capita greater than 49 other States. Yet, we have no
say in Congress in how these dollars are spent.
More District citizens have died in wars protecting the
Nation than have the citizens of 20 other States. Congress has
the exclusive right to declare war, and again, we have no say
in this decision. The impeachment proceedings in Congress a few
years ago highlighted the glaring anomaly of our lack of vote
on an issue of removing from office the President of the United
States whom we had a vote to elect.
The United States is the only democracy in the world in
which residents of the capital city are denied representation
in the national legislature equal to that enjoyed by their
Federal citizens. The denial of voting representation in
Congress locks District residents not only out of our national
legislature, but also out of what is a structural sense of our
State legislature, a legislature that has extraordinary
approval authority over all of the District's local legislation
and all of the District's locally raised dollars, as
articulated earlier by the Mayor.
We who are elected representatives of the District's
citizens are reminded daily, sometimes painfully, of the
exclusive jurisdiction that Congress exercises over the
District of Columbia pursuant to Article I, Section 8 of the
United States Constitution. We believe that this same broad
jurisdiction provides Congress with the constitutional
authority to enact a bill by simple majority to restore
Congressional voting rights to District citizens. The Congress
and the Constitution treat the District as a State for hundreds
of purposes, whether they are Federal benefits, burdens, or
rights. Why not the most precious and fundamental right in a
free and democratic society, the right to vote?
The denial of District citizens the right to Congressional
voting representation is the last unbreached frontier of civil
and human rights in America. As the United States rightly tries
to be a model and a defender of democracy around the world, we
implore you to find a remedy to remove this inexcusable
hypocrisy of democracy denied in our Nation's capital.
We have tried in the past and without success thus far to
obtain Congressional voting rights through a constitutional
amendment, through a Statehood bill, through litigation. The
Supreme Court, while sympathetic, has essentially stated that
it is Congress where the remedy to this problem must be
resolved.
As we ask the Senate to take action this year to remedy our
lack of voting representation in Congress, we also request that
you take favorable action as soon as possible on legislative
and budget autonomy for the District of Columbia. District
residents have been invited to dinner but we have not been
allowed to eat. D.C. residents are hungry for democracy. D.C.
residents are starving for voting representation in Congress.
It is past time for Congress not only to talk about the wrongs
around the world regarding voting rights. It is now time to
correct this injustice to the citizens of the District of
Columbia. It is time for the plate of democracy to be passed to
the citizens of the District of Columbia.
Mr. Chairman, thank you again so very much for this
opportunity to testify before the Committee today. As always,
the Council looks forward to working with you in partnership to
right this injustice.
Chairman Lieberman. Thank you. Thank you for that excellent
statement and I look forward to working with you and the
Council, as well.
The final witness on this panel is Statehood Senator
Florence H. Pendleton. I do want to point out that, as I
mentioned earlier, Senator Pendleton is the senior member of
the delegation, but it is a delegation, I should state for the
record and for those who do not know, that has been elected by
the citizens. That is, Senator Pendleton, Senator Strauss, and
Representative Ray Brown have been elected by the citizens of
the District of Columbia to come before Congress and advocate
the cause of Statehood. We are honored to have you here and
look forward to your testimony now.
TESTIMONY OF HON. FLORENCE H. PENDLETON, DISTRICT OF COLUMBIA
STATEHOOD SENATOR
Ms. Pendleton. Thank you so very much. Good afternoon,
Senator Lieberman and Members of your Committee. It is so good
that you are having this meeting today. It is a different kind
of notice from the one I have had before. We have had Statehood
meetings before. However, things have been tossed out and we
are not applying for Statehood but we are asking for voting
rights.
No Taxation Without Representation is noteworthy because we
are simply asking not to pay taxes unless we vote. The request
is simple, no taxation without representation, and the answer
can be straightforward. I would like to see the Senator or the
member of the House of Representatives advocate that the people
he represents are not entitled to representation and then give
up his seat. You must not sit to represent a government and say
that one is equal and one is unequal.
All of the elected officials of the District of Columbia
must speak with one voice on behalf of the residents of the
District of Columbia. United we stand. I do not want to leave
our children or our children's children in bondage. Let us put
differences aside and work for the benefit of the people.
Working together, we can unite the people, ignite their power,
and focus their strength on the goal of freedom now.
District residents have been paying Federal income taxes
since 1943 and that was before the end of World War II. Our
time has come. We must come out with a solid, united front for
democracy, and the time is now.
We must not take the crimes of persecution, enslavement,
hatred, and greed from the 19th Century into the 21st Century.
These evils have caused us pain and they have almost ruined our
voting rights. We must lift up humanity and seize the day.
Failing to do your duty, will you be able to stand and face
the people, speak to the Congress on behalf of those citizens
who have declared their desire to vote? If not you, who? And if
not now, when?
We must move this ship of freedom together if we are to be
successful in combatting the oppression facing us here in the
District of Columbia. The voting rights of the District of
Columbia are begging for us to come forward, and forward we
have come. It is not everything, but it is something and voting
for this is what we want and any no vote should give up his
seat.
I sincerely thank you for having this session and I
certainly do appreciate being able to speak.
Chairman Lieberman. Thank you, Senator Pendleton. Thanks
very much.
The three of you anticipated most of the questions I wanted
to ask in your opening statements, but let me ask this. As I
listened to the first panel and the three of you speak, it
really does seem to me that it would be hard for somebody to
make a case against the principle here and the reality, the
fact that District residents do not have voting rights, and,
therefore, the concerns I presume that make this a more
difficult effort for Congresswoman Norton and me and others are
political, worries about how people would vote.
So I want to give you, those of the three of you who wish
to respond, an opportunity to respond to that political concern
about the political result of voting rights here in the
District as opposed to the principle, and then if you have
heard other arguments that I am not considering, as they used
to say to us in law school, against voting rights, whether you
would share those with us, and if you care to provide the
argument against.
Mayor, do you want to begin with a response to either of
those questions?
Mayor Williams. I have often heard as we have traveled
around that full voting rights for the District might result in
tilting the balance politically one way or the other. But I
would agree with other Members of the Committee who have
mentioned that the rub in our Constitution is that we honor
fundamental rights regardless of the consequences. We honor
fundamental rights regardless of how difficult it is to honor
those rights.
The Fourth Amendment is often honored in very difficult
circumstances, the Sixth Amendment, we know, in very difficult
circumstances, a franchise in very difficult circumstances that
we have seen as recently as a couple of years ago.
So I think the fact that the electoral balance might be
tipped one way or the other is at, I think, the point of our
whole Declaration of Independence and Constitution and Pantheon
of Rights. It is not that it is the province of elected
officials to decide. It is the province of citizens to decide.
While it is not our job to give all the arguments against
voting rights for the city, you often hear the argument that
Congress has plenary authority over the District and the
Constitution is settled, and I would say two things to that.
There are many individuals or organizations, sectors, if you
will, that have power in the Constitution. Within our
constitutional framework, the exercise of those powers always
has to be balanced against and in the context of the overall
framework of the Constitution.
For example, the President has executive power under the
Constitution, but certainly he has to or she has to exercise
that executive power with due cognizance of the rights of
others in the Constitution, rights specified in the
Constitution, and certainly the fundamental right of the
people.
So the fact that Congress has power over the District to me
does not, in my mind, excuse it of the responsibility to
exercise that authority in the overall context of our
Constitution based on principles of democracy.
The second thing you often hear is, well, it is in the
Constitution and that is that. As soon as our Constitution was
written, it was already being amended with a Bill of Rights. If
the Constitution had not been amended, I would not be sitting
here as Mayor. Many of us would not be sitting here. So we have
often, as you mentioned in President Washington's quotation,
the Constitution was not written as a shrine before which we
all worship but as a living, breathing document based on the
fundamental rights of citizens.
Chairman Lieberman. Well said. The third panel is composed
of some legal experts and I might ask them to speak to the
constitutional history here, but I believe I recall that the
fact is that the District Clause was first inserted in the
Constitution after the State of Philadelphia failed to protect
the Continental Congress from protesting Revolutionary War
veterans. Is that your recollection?
Mayor Williams. That is my recollection, and as I often
tell people, a perverse thing has happened. In order to
insulate the Congress from parochial interests, exactly the
inverse or converse has happened. The District is now exposed
to the whim and the fancies and the predilections of 535 people
often acting as a city council for the District.
Chairman Lieberman. I guess I would add, being part of
protecting Congress from any number of protesting groups that
come here in a given year, bearing the cost of that protection,
as a matter of fact.
Chairwoman Cropp, do you want to add at all to the
questions that I have asked?
Ms. Cropp. Let me just concur with what the Mayor stated.
But I think in addition to that, it is very clear that the
intent was not to deny the District citizens the right to vote.
The clear intent was for District citizens to have the right to
vote and that is why we were franchised initially.
Chairman Lieberman. Right.
Ms. Cropp. As stated by the Mayor, we have erasers on
pencils in order to correct mistakes, and if, in fact, anyone
thinks that it was a mistake, then it is time to use that
eraser and correct this very basic and fundamental principle
for the District citizens.
We have an opportunity, even if the Federal Government
believes that it ought to protect itself, to still protect the
Federal enclave in the format of Federal buildings and keep
that sacrosanct, while at the same time not disenfranchising
600,000 other people who make the District of Columbia their
home and who are citizens.
I believe that the court case that was just before the
Supreme Court really spelled out some very excellent legal
principles. I am not a lawyer so I cannot address them as they
did, but it is just common sense. My grandmother said when I
went to college, she was very thrilled and she hoped that it
was just one of many degrees that I may have, but always
remember, if you do not have common sense, none of the degrees
will matter to a hill of beans.
Chairman Lieberman. That is right.
Ms. Cropp. And it is just common sense that the District
citizens should not be disenfranchised, and particularly when
the intent initially was for us to have voting representation.
Chairman Lieberman. Senator Pendleton, would you like to
add anything?
Ms. Pendleton. I would just like to say that I have not
heard any persons say too much against this particular bill.
Now, the Statehood bill, yes. This bill, for just voting
rights, no, because, in fact, there are those who say that this
bill will pass. The other bill you had will not. So they are
thinking that this bill, this voting bill, this bill to just
vote, will pass and that those persons who are for the
Constitution and for saying what we are going to do and
everything, that one bill is for now and, therefore, we should
just push and push all of our efforts into the voting bill and
let it rest.
Chairman Lieberman. Thank you. I thank the three of you
very much for joining this cause, for articulating it very
effectively, and also for giving real texture to the
relationship between the Federal Government and the Government
of the Capital City and the Capital City, which just to me, in
practical terms, strengthens the argument for voting rights. I
appreciate your being here.
Mayor Williams. Thank you, Mr. Chairman.
Ms. Cropp. Thank you.
Ms. Pendleton. Thank you.
Chairman Lieberman. Thank you very much.
We will now call the third panel, Wade Henderson, Executive
Director, Leadership Conference on Civil Rights; Adam Kurland,
Professor of Law, Howard University School of Law; and Jamin
Raskin, a Professor at Washington College of Law, American
University.
Gentlemen, thanks for being here. I appreciate the
opportunity to hear from your experience and expertise on the
subject before us.
Mr. Henderson, you are a familiar, and in this case that is
a positive statement, face and voice in the halls of Congress
and always a very effective one on behalf of the Constitution
and the basic rights that define our Nation, much more than its
borders do, so we look forward to your testimony now.
TESTIMONY OF WADE HENDERSON,\1\ EXECUTIVE DIRECTOR, LEADERSHIP
CONFERENCE ON CIVIL RIGHTS
Mr. Henderson. Thank you, Mr. Chairman, and thank you
especially for the opportunity to testify this afternoon on
voting representation in Congress for the citizens of the
District of Columbia.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Henderson appears in the Appendix
on page 62.
---------------------------------------------------------------------------
My name is Wade Henderson and I am privileged to be the
Executive Director of the Leadership Conference on Civil
Rights. The Leadership Conference consists of more than 180
national organizations representing persons of color, women,
children, labor unions, individuals with disabilities, older
Americans, major religious groups, gays and lesbians, civil
liberties and human rights organizations. Together, over 50
million Americans belong to organizations that comprise the
Leadership Conference on Civil Rights.
The Leadership Conference strongly supports efforts to give
citizens of the District of Columbia full voting representation
in the U.S. Congress. At the outset of this hearing, I want to
commend you, Mr. Chairman, for your leadership on this
important issue and on the introduction of your bill, S. 603,
the No Taxation Without Representation Act. The Leadership
Conference fully supports this bill, along with its counterpart
in the House of Representatives, introduced, as you noted, by
Representative Eleanor Holmes Norton.
The right to vote is fundamental in our democracy. The
struggle to obtain voting rights for all Americans has long
been at the heart of the fight for civil rights. The Congress
has enacted many important laws over the years protecting and
enhancing the right to vote, such as the 13th, 14th, and 15th
Amendments to the Constitution, the Voting Rights Act of 1965,
and the National Voter Registration Act of 1993.
Your bill, Mr. Chairman, continues the distinguished path
of providing the full measure of the right to vote for all
Americans. It is a top priority on the legislative agenda of
the Leadership Conference.
As you have noted, Mr. Chairman, voting is the language of
democracy. Without it, the citizens of the District are the
silent voice in the wilderness, spectators to democracy, right
in the literal shadow of the very governing institutions that
serve as a shining beacon to the rest of the world. This is not
right, this is not fair to have two distinct classes of
citizens, those of the 50 States and those of the District of
Columbia.
Now, the Leadership Conference holds as one of its guiding
tenets that all citizens of the United States must be treated
equally under the law. We have long supported the civil rights
movement here in our Nation's capital, championing the voting
rights for the citizens of the District and the popular
election of local officials.
The tragedy of this past September 11 terrorist attacks on
our Nation pointed out the importance of the District of
Columbia and the paradox of denying D.C. residents the full
measure of participation in our government. On that terrible
day, terrorists struck at our financial center in New York City
and our government center here in Washington. The attack was
one on all Americans, without regard to race, color, religion,
sex, national origin, disability or sexual orientation, and
Americans from around the Nation opened their hearts with
unparalleled generosity to help the victims of this tragedy.
The citizens of the District of Columbia were no exception.
D.C. residents were part of the first responders to the
Pentagon attack. Members of the District of Columbia National
Guard were among the first to be called up to serve our Nation
during this time of crisis. And, sadly, D.C. had its share of
victims in the September 11 attack. Yet D.C. residents have no
voting representation in the very government they seek to
preserve and defend.
Now, the Leadership Conference believes it is now time to
move forward on this important legislation under discussion
today. Residents of the District dutifully comply with their
civic responsibilities and obligations under our democratic
form of government. They pay taxes and they serve in our Armed
Forces. And yet residents of the District are blatantly denied
and deprived many of the essential rights and privileges of
citizenship enjoyed by all other Americans. This issue,
therefore, is one of simple justice and fairness.
Now, we have noted, of course, that we pay income tax and
that we serve, and you have noted all of this, as well, and as
you referred in just your past comments, the fact that the
District has been denied voting representation has not always
been the case. Before the District was established in 1800,
residents of the City of Washington were able to vote for
Representatives in Congress as either citizens of Maryland or
Virginia. There is no prohibition on restoring voting
representation in Congress for the citizens of the District of
Columbia.
This issue has long had bipartisan support in Congress and
I would hope that it would do so again today. In 1978, both the
Senate and the House passed a constitutional amendment to grant
full representation to D.C. residents, and although that
amendment failed to be ratified by the required 38 States, it
was supported by many prominent Republicans and Democrats, and
in my written testimony, Mr. Chairman, I note various
individuals, from Senator Bob Dole to President Richard Nixon
to Senator Robert Byrd, among others, who have noted the
importance of voting representation for the District.
Before I conclude, Mr. Chairman, let me address the issue
of taxation without representation. Some will argue that if
this bill were enacted, it would turn the District of Columbia
into a haven for tax dodgers, and certainly nothing could be
further from the truth. This bill is aimed at achieving full
voting representation in Congress for the citizens of the
District, and as we have noted, they do pay more taxes and do
all those things that are required by citizens of the Nation.
Its title, that is the No Taxation Without Representation, of
course, harkens back to the historic foundations of American
democracy.
This bill is aimed at moving the Congress to take positive
action on this issue but does not, in fact, create voting
representation in Congress for Representatives of the District
of Columbia. The bill merely makes clear that until full voting
representation is achieved, residents of the District should be
treated more like their counterparts in the territories of the
United States who do not pay Federal taxes.
While the Leadership Conference supports providing full
voting representation for the citizens of the District, we also
believe that until this happens, it is important that District
residents should be treated for tax purposes like their
similarly situated counterparts in the territories of the
United States.
Since the attacks on the United States in September, we
have been eloquently advocating to the international community
for democracy abroad, and rightfully so. But it is now time to
preach democracy at home, as well. We urge Congress to pass
your bill, Mr. Chairman, and to bring democracy home to the
citizens of the District of Columbia, and we should give those
who live within the shadow of the capitol the basic right to
enjoy full voting representation in the Congress of the United
States. Thank you for the opportunity to appear before you
today.
Chairman Lieberman. Thanks, Mr. Henderson, for a very
thoughtful statement. I look forward to asking some questions
afterward.
Professor Kurland, welcome. I look forward to your
statement.
TESTIMONY OF ADAM H. KURLAND,\1\ PROFESSOR OF LAW, HOWARD
UNIVERSITY SCHOOL OF LAW
Mr. Kurland. Mr. Chairman, thank you very much for inviting
me to testify before this proceeding today. This hearing is a
welcome and constructive step because the issue is, I believe,
now being debated in the appropriate forum. However, Congress
cannot by simple legislation grant D.C. citizens voting rights
in Congress. A constitutional amendment is required.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Kurland appears in the Appendix
on page 68.
---------------------------------------------------------------------------
The makeup of the Federal legislature is an essential
ingredient of our federalism. Every school child is, or should
be, familiar with the story of the Constitutional Convention
and the so-called Great Compromise which resulted in each
State's proportional representation in the lower House and
equal representation in the Senate, and most historians agree
that without this compromise, the work of the Constitutional
Convention would never have been completed. In addition, the
importance of this compromise can also be gleaned from the
final clause in Article V of the Constitution, which concerns
the constitutional amendment process, and it says, ``that no
State without its consent shall be deprived of its equal
suffrage in the Senate.''
Representation in the Federal legislature is defined by
clear, unambiguous constitutional requirements. The
Constitution provides that the Senate of the United States
shall be composed of two Senators from each State. It also
requires that the House of Representatives be composed of
members chosen by the people of the several States and that
each member of Congress be an inhabitant of the State from
which he shall be chosen.
The District of Columbia, or in constitutional parlance,
the seat of the Government of the United States, as it is
referred to in Article I, Section 8, Clause 17, I believe, as
presently constituted is not a State. Therefore, as presently
constituted, the citizens of the District are not entitled to
representation in the House or the Senate. The only way the
District as presently constituted can achieve full voting
representation in the House of Representatives and in the
Senate is by constitutional amendment.
The Statehood alternative, which raises other
constitutional issues, is discussed in my written testimony and
obviously is not part of the proposed bill before the Senate
now.
The controlling constitutional principle must be
emphasized. Congress has a critical but non-exclusive role to
play in the political process necessary to achieve any change
in D.C.'s present status of no representation in the Federal
legislature. Congress cannot by simple legislation provide the
present District of Columbia citizens with voting rights. Such
legislation would be unconstitutional.
Legal arguments have been made that a variety of
constitutional principles require that District citizens
receive Congressional representation. Those arguments have been
uniformly rejected by the courts. Moreover, any attempt to rely
on Congress's enforcement powers to legislate pursuant to
Section 5 of the 14th Amendment is also, in my view, misplaced.
The present lack of D.C. representation in the Federal
legislature is a feature of American federalism, is part of the
current constitutional structure, and does not violate equal
protection, due process, or any other constitutional principle.
It is true that Congress in other contexts often treats the
District ``as if it were a State'' for a variety of legislative
purposes, principally for funding allocation of various Federal
programs pursuant to Congress's Article I powers. However,
Congress does not possess the legislative authority to decree
the District a State for the purposes of providing or
allocating representation in the national legislature.
With respect to the proposed legislation to either grant
the District representation or to make it a tax-free haven,
exempting D.C. residents from taxes until representation is
achieved, that particular proposal is flawed for a couple of
reasons. First, the either/or tradeoff has essentially been
acknowledged as, basically, a well-placed rhetorical device,
but the proposal has very little chance of ever being enacted.
Second, the ``taxation without representation'' slogan is
actually inapposite and has been conclusively refuted in many
other fora over the last several decades. In short, District
residents are simply not victims of a far-off imperial power
imposing taxes selectively as a means of economic exploitation.
Third, the either/or tradeoff is based on a faulty legal
premise because Congress, in any event, does not possess the
unilateral authority to enact legislation conferring D.C.
voting rights.
And fourth, despite Mr. Henderson's comments, it would not
make the District a tax evader haven or a tax dodge haven, but
if the District was set up as a tax-free zone, there are many
Americans, and I am quoting Professor Raskin, who even kind of
half-jokingly but half-seriously has commented that a lot of
Americans do not like taxation with representation, let alone
taxation without representation, that if the District were made
a tax-free haven, it would be very alluring, if that is the
proper word, so that people might want to move in and say they
would rather not pay Federal income taxes than vote. And we can
laugh about that and that obviously deprecates the principle,
and I do not mean to make light of it, Mr. Chairman, but given
the low voter turnout in many elections, it cannot be just
laughed off as a joke.
Upon two-thirds of the vote of both Houses of Congress,
Congress can propose a constitutional amendment to be submitted
to the States for ratification. Ratification of a proposed
constitutional amendment requires approval of three-fourths of
the State legislatures or three-fourths of specifically called
State constitutional conventions. A proposed constitutional
amendment could provide for the District to elect a member of
the House only or could provide for Senate representation,
either with one or two Senators.
A proposed constitutional amendment to provide the District
with representation in the Federal legislature failed in 1978,
as has been mentioned several times. It would seem to me that
if equal voting rights is the goal sought to be achieved, that
would seem to militate in favor of a proposal that the District
receive proportional representation in the House and two U.S.
Senators. Political reality must acknowledge that this formula
would appear to guarantee two additional Democratic Senators
for the foreseeable future.
However, the body politic must demonstrate the ability to
rise above partisan politics. President Bush has often said
that political Washington too often focuses on what is good for
a particular party instead of what is good for America. This
issue actually provides all involved an opportunity to
demonstrate that America both inside and outside of the beltway
will do what is best for America.
Upon two-thirds vote of both Houses of Congress, Congress
should send a proposed constitutional amendment out to the
States for ratification, or Congress could choose to sidestep
their respective State legislatures altogether. Article V of
the Constitution gives Congress the option of the means of
ratification. Congress can choose to send the proposed
amendment to State legislatures or to State constitutional
conventions expressly convened to consider the sole issue of
ratification of the proposed constitutional amendment.
Congress clearly possesses the authority to propose a
constitutional amendment to provide the District with voting
rights for Federal elective office. Congress took an analogous
path in 1960 when it submitted the 23rd Amendment to the States
for ratification and thus provided for the District's
participation in Presidential elections through the Electoral
College, and I believe that constitutional amendment was
ratified in less than a year.
Just to conclude, there are three related points that I
think warrant brief measure.
Chairman Lieberman. You can take a moment or two to finish
your statement. Go right ahead.
Mr. Kurland. All right. Thank you. Three related points,
then, warrant mention. One could argue that it is
unconstitutional to provide voting rights in the Senate to a
non-State entity such as the District of Columbia even by
purported constitutional amendment. As noted above, the
language that I set forth in Article V provides that no State
without its consent shall be deprived of equal suffrage in the
Senate. What exactly does that mean? It obviously has never
been litigated.
I do not advocate this position, but some have argued that
it perhaps could imply that the constitutional provision
concerning the make-up of the Senate is, in effect, unamendable
and that it would take a unanimous vote of the States to ratify
a constitutional amendment providing for D.C. voting rights as
opposed to creating a new State. How such an amendment would be
challenged if it were ratified by less than all of the States
raises an interesting legal question, to say the least.
Second, in a similar vein, one might argue that the
inherent fabric of the Great Compromise includes the core
principle that the citizens were represented in the House and
the States as States are the only body that gets representation
in the Senate. It is also undeniable that the founders rejected
pure majoritarian democracy in the original makeup of the
Constitution. Under that scenario, the District should get a
House vote but no Senate vote.
However, if one goes through the process of amending the
Constitution today, the 18th Century principles should not be
determinative. It is contrary to most of the modern equal
voting rights principles that have evolved over the last half-
century, notwithstanding some of the language in the Supreme
Court decision of Bush v. Gore, which I am sure the Chairman is
well familiar with.
Chairman Lieberman. It rings familiar to me. It gives me a
headache. [Laughter.]
Mr. Kurland. Moreover, regardless of whether these above
principles accurate reflect the original nature of the Union,
the concept of a State as a distinct political entity apart
from its citizens was substantially eroded, if not effectively
eliminated, with the passage of the 17th Amendment in 1913,
which provided for the direct election of Senators.
Third, providing the District with only one Senate vote,
which reflects another sort of compromise proposal that has
been bantered about in the last 20 or 30 years, would actually
abrogate the constitutional role of the Vice President to break
ties. Although the Vice President has been called on to break
ties on Senate votes infrequently throughout history, the Vice
President's role as Senate tie-breaker is constitutionally
significant and should not be eliminated as an unintended
consequence of an apparently unrelated constitutional amendment
that would provide for an odd number of Senators. And I also
note that just, I believe, yesterday, Vice President Cheney
cast a tie-breaking vote, so the situation is not simply one
that academics fiddle with. In conclusion----
Chairman Lieberman. We will have your whole statement
printed in the record.
Mr. Kurland. Thank you, Mr. Chairman. The U.S. Conference
of Mayors recently has come out in support of D.C. voting
rights. This is a positive indication that the political
process quest for D.C. voting rights has moved to the
grassroots level State by State, where I believe it is
absolutely constitutionally necessary to achieve D.C. voting
rights in the Federal legislature. If the denial of D.C. voting
rights in the national legislature is so antithetical to the
democratic ideals which Americans cherish, a proposed
constitutional amendment for D.C. voting rights should be able
to win passage in three-fourths of the States easily, and to
the extent that the statistics have been mentioned here
concerning 80 percent in polls, that is consistent with that
proposition.
To the extent Americans wear democratic ideals more openly
on our sleeves in the post-September 11 world, that should work
in favor of passage of a constitutional amendment. We should
not be afraid to ``have to resort to'' an inconvenient or even
difficult constitutional amendment process. As Abraham Lincoln
said, ``A majority held in restraint by constitutional checks
and limitations is the only true sovereign of a free people.''
Americans of all political parties should cherish and
embrace the solemn challenge and opportunity to amend the
Constitution. That is good not only in some grand civics lesson
sense, not only good in some academic sense, but it is good for
the citizens of the District of Columbia, the citizens of our
Nation, and it is a shining example for the world. All who
embrace D.C. voting rights should embrace the opportunity to
make the case for constitutional reform to the people of the
States. If 21st Century equal voting rights principles cannot
prevail in the political marketplace of ideas over one small
aspect of 18th Century structural principles of federalism,
that would suggest to me that the American people still find
contemporary value in those original constitutional federalism
principles. If the poll numbers are correct, that should not be
the case and the constitutional amendment process is the
appropriate legal and constitutional way to achieve the result.
Thank you very much for your time, Mr. Chairman.
Chairman Lieberman. Thank you, Professor Kurland. So if I
can paraphrase or summarize, you do support voting rights for
District residents?
Mr. Kurland. I support voting rights for District
residents, yes.
Chairman Lieberman. Right. But your argument is that can
only be achieved by constitutional amendment?
Mr. Kurland. I am--I should not say absolutely certain--I
speak with a reasonable degree of certainty that any D.C.
voting rights legislation passed by the Congress would be
unconstitutional and that the voting rights representation in
both Houses of Congress requires a constitutional amendment.
Chairman Lieberman. Thank you.
Professor Raskin, I do not want to push your testimony in a
particular direction, but am I correct that you disagree with
that contention?
Mr. Raskin. Yes.
Chairman Lieberman. And you will speak to it as part of
your testimony?
Mr. Raskin. Indeed, I will, and I will skip over several
pages of moral outrage and get right to the constitutional
analysis. [Laughter.]
TESTIMONY OF JAMIN B. RASKIN,\1\ PROFESSOR, WASHINGTON COLLEGE
OF LAW, THE AMERICAN UNIVERSITY
Mr. Raskin. I would like to say----
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Raskin appears in the Appendix on
page 79.
---------------------------------------------------------------------------
Chairman Lieberman. You can give us a little moral outrage.
That is fine. [Laughter.]
Mr. Raskin. Has there not been enough of that already?
Actually, hearing your statement, Professor Kurland, gave me a
little more moral outrage. I never yet heard before floated the
proposition that a constitutional amendment could itself be
unconstitutional. I thought that enemies of voting rights for
D.C. were gathering the idea that you needed a constitutional
amendment, and apparently for some of them, even that is not
going to be enough. Presumably, an act of God or an amendment
to the Bible would be required to make it happen.
Mr. Kurland. I did not make that up.
Mr. Raskin. I trust you did not.
The founding idea of the country is that governments derive
their just powers from the consent of the governed, as
Jefferson put it in the Declaration of Independence, which was
actually signed by several people who represented the land that
the District of Columbia is now on.
Our whole history has been a struggle to become a
democracy, to transform the original republic of Christian,
white, male, property owners over the age of 21 into what that
great Republican President Abraham Lincoln called government of
the people, by the people, and for the people.
The purpose of the District Clause, as you noted, Senator
Lieberman, and as I describe in detail in this law review
article \2\ I will leave with you, was to assure the police
security and military defense of the capital city, not to
disenfranchise a large population of American citizens.
---------------------------------------------------------------------------
\2\ Article entitled ``Is This America? The District of Columbia
and the Right to Vote,'' appears in the Appendix on page 111.
---------------------------------------------------------------------------
Chairman Lieberman. Talk about that a little bit in the
historical context, if you would.
Mr. Raskin. I would, indeed. It goes back to June 21, 1783,
when the Continental Congress in Philadelphia was meeting in
the Pennsylvania State House and there was an unruly band of
disgruntled Revolutionary War soldiers who had not been paid
yet and they had actually come to confront not Congress, but
the Executive Council of Pennsylvania, which was meeting on the
second floor as opposed to the first floor. When the
Congressmen on the first floor appealed to the Executive
Council upstairs to get the Pennsylvania militia to put down
this brewing uprising outside, they refused to do it because
they did not want a violent confrontation.
Madison later called this incident disgraceful and used it
during the constitutional debates to argue for the need for
exclusive Federal jurisdiction over the seat of Federal
Government. If you go look at the constitutional debates, you
see references replete throughout the debates to this incident.
Chairman Lieberman. But again, no comment there or no
action regarding the voting rights of residents of the capital
city.
Mr. Raskin. No, and there were very few people--well, first
of all, we did not even know where the new District was going
to be. It had not been sited yet. And so all of the members of
the Constitutional Convention were voting on it in sort of the
original position, if you will, not knowing where it would be,
and no one was thinking that voting rights would ever be at
stake. After all, they had just fought a revolution against the
principle ``no taxation without representation'' and it was
assumed that would not happen in the new United States.
And, indeed, when the Federal District was finally sited on
the banks of the Potomac in 1791 with Congress accepting the
lands from Maryland and Virginia, the residents continued to
vote for a decade in Federal elections in Maryland or in
Virginia and that only ended with the passage of the Organic
Act in 1801. No one thought that it was unconstitutional.
Now, the D.C. Corporation Counsel brought a lawsuit in
1998, Alexander v. Daley, which pointed out this history and
argued that the modern ``one person, one vote'' guarantee makes
disenfranchisement unconstitutional and asked for restoration
of the right to vote that was lost in 1801. By a two-to-one
vote, the panel rejected the argument and found continuing
permission for disenfranchisement in the structure of State-
based representation, which was the argument that Professor
Kurland was making.
Nonetheless, the majority observed that there is ``a
contradiction between the democratic ideals upon which this
country was founded in the exclusion of District residents from
Congressional representation.'' It remarked that none of the
parties, including the Justice Department, ``contests the
justice of the plaintiffs' cause.'' Yet the judges in the
majority accepted the argument that the court was powerless to
order a change and that any relief ``must come through the
political process.''
So the ball is in your court, and this could mean three
things. First, Statehood, which is not on the table.
Second, it might mean a statute conferring full voting
rights and Congressional representation, a kind of Voting
Rights Act for Washington, which is how I understand the No
Taxation Without Representation bill submitted by Congresswoman
Norton. Would it be constitutional, back to your question? To
my mind, yes. Congress treats the District explicitly as though
it were a State for 537 statutory purposes that I laboriously
counted in my Harvard Civil Rights-Civil Liberties law review
article, from Federal taxation to military conscription to
highway funds, education funds, national motor-voter, and so
on.
Chairman Lieberman. It counts as a State in the sense that
it is treated in all those statutes--my question, I guess,
answers itself--but as if it were a State?
Mr. Raskin. There is a line in almost every statute which
says, for the purposes of this statute, the District of
Columbia shall be treated as though it were a State.
Chairman Lieberman. So it is quite explicit. OK.
Mr. Raskin. Moreover, Congress and the Supreme Court have
treated District residents as residents of a State for
constitutional purposes, from the Full Faith and Credit Clause
to diversity jurisdiction under Article III, and there is an
interesting litigation history to that. Originally, back in the
1800's, the Supreme Court said that because Article III of the
Constitution referred to diversity jurisdiction as applying to
citizens among the States, it did not apply to D.C., and said
the District residents could not get into Federal Court on
diversity grounds. Congress passed a statute saying the
District should be treated as a State for diversity purposes
and the Supreme Court upheld that in the 20th Century. So why
can Congress not treat the District as though it were a State
for the even more fundamental purpose of representation?
Now, some, like Professor Kurland, would invite us to
believe that the District Clause gives Congress power to do
anything it wants to people in the District except give them
the right to vote, but this straightjacket approach undermines
the idea of the Constitution as the charter of democratic
sovereignty for we the people. This seminal phrase should
include all of us, and certainly did include everyone who was
on the lands that would become the District when the
Constitution was written.
As Justice Kennedy wrote in U.S. v. Thornton in 1995, the
Congress is not a confederation of nations in which separate
sovereigns are represented by appointed delegates, but is
instead a body composed of the representatives of the people.
So I have no problem in saying that Judge Louis Oberdorfer, who
was the senior and dissenting judge on the three-judge panel in
Alexander v. Daley, was right. Not only can Congress use its
ample powers over the District to fully enfranchise the people,
it must do so, and I am submitting with my statement a complete
and very thoughtful legal analysis of this problem by two fine
lawyers, Walter Smith and Elise Dietrich, who were co-counsel
with me and the Corporation Counsel in Alexander v. Daley.
Now, there are those like Professor Kurland who attack a
D.C. Voting Rights Act as unconstitutional, and indeed, voting
rights advocates should be sober about the fact that
conservative views are more prevalent on the Supreme Court
today than the progressive views of, say, Justices Marshall and
Brennan.
Senator Lieberman, you certainly do not need any tutorials
about the distinctive judicial activism that has appeared
recently on the Supreme Court to control elections and voting
rights. Even looking at the broader canvas, a narrow majority
in this court in the past few years has struck down in whole or
in part the Gun Free School Zones Act, the Violence Against
Women Act, the Religious Freedom Restoration Act, the Brady
Handgun Violence Prevention Act, the Fair Labor Standards Act,
the Low-Level Radioactive Waste Policy Act, and so on.
How much faith should we have that the Court's majority
would ultimately accept a D.C. Voting Rights Act as
constitutional? I do not know. But all that you need to know as
legislators is that you, like Thomas Jefferson, see the
Constitution's legitimacy as resting on the consent of the
governed and that you are convinced that Congress's powers over
the District must be sufficient to effectuate not just the
burdens but the rights of democratic citizenship.
There is, finally, the possibility of a constitutional
amendment treating the District as though it were a State for
purposes of representation. A D.C. voting rights amendment, at
least I thought until I heard Professor Kurland's testimony,
would definitely be constitutional. It would require a two-
thirds vote in both Houses and ratification by three-quarters
of the States. As an amendment, it should be safe from judicial
attack and would be more durable than a statute, which could be
more easily repealed. Congresswoman Norton referred to her
experience in voting in the Committee of the Whole, where she
won, through really brilliant parliamentary persuasion, the
right to vote, only to see it taken away a few years later when
the House changed hands.
Now, one strong argument for a constitutional amending
strategy is that Washington can actually do America a big favor
this way. I say this because as we saw in the 2000 election,
the right to vote nationally is a vulnerable thing. As the
Supreme Court's majority found in Bush v. Gore, ``there is no
federally protected constitutional right to vote in
Presidential elections.'' In this sense, we can see
Washington's status as not just exceptionally egregious in its
nearly categorical disenfranchisement, but as exemplary and
illustrative of the weakness of the right to vote generally.
Now, Congresswoman Norton herself is a professor of
constitutional law who has done everything in her power to
advance democracy for Washington within the existing
constitutional structure and her perseverance is really
astounding. I think she understands that the moment may come--
it may not come, but it may come when current restrictive
understandings of the Constitution become an obstacle to
democracy and the amending strategy that was tried in 1978 may
have to be revived. That moment has not necessarily arrived yet
and there may, indeed, be the political will in Congress to
pass the No Taxation Without Representation Act.
The point she brings before America today is that,
ultimately, what counts most is not the means, but the end,
full voting rights and representation for everyone in
Washington, which is the birthright of all American citizens,
including her constituents.
Chairman Lieberman. Thanks very much, Professor Raskin.
Mr. Henderson, do you want to get into this debate between
the two law professors on the question of the----
Mr. Henderson. Well, I---- [Laughter.]
Chairman Lieberman. Of course, the question is on whether,
by statute, we can give voting rights to residents of the
District.
Mr. Henderson. Thank you, Mr. Chairman. I also teach and am
the Joseph Rowe Professor of Public Interest Law at the
University of the District of Columbia Law School.
Chairman Lieberman. Right. I apologize for not remember-
ing----
Mr. Henderson. No.
Chairman Lieberman [continuing]. But I see you in your
Director position.
Mr. Henderson. Well, no, and it is a privilege to be here
on behalf of the Leadership Conference, but I do want to pick
up on one point that Professor Kurland noted.
To assume that one is required to resort to a
constitutional amendment, which is a process of last resort
when all other permissible means of achieving the end result
that we desire, in this instance, it seems to me is premature.
Now, he does make note, and I found it interesting because it
is seemingly contradictory on its face, on the one hand, he
notes his support for the right to vote on behalf of District
residents. He notes, however, the need to pursue a
constitutional amendment, but then further in his remarks
suggests that a constitutional amendment itself may prove to be
unconstitutional and for that reason raises questions about the
validity of that process as it relates to addressing the
problem of achieving the right to vote on District residents.
I thought the brilliance of the bill that both you and
Congresswoman Norton have submitted is that it isolates first
the fundamental principle at stake, which is providing the
citizens of the District of Columbia their right to vote not so
much as citizens of the District of Columbia, but rather
hearkening back to their status as citizens of the United
States and arguing first and foremost that because they are
citizens of the United States, they have to be treated equally
with other citizens of the United States. Now, it happens that
they live in the District of Columbia, and yes, there is a
District Clause in the Constitution that regulates certain
functions as citizens of the District of Columbia. But it does
not ultimately pertain to their status as citizens of the
United States, nor does it preclude their right to vote in that
capacity.
It seems to us that the argument that you have made, which
is first provide voting rights for the District, let us decide
that question first, and then the issue of what form the rights
will take does obviously have to be decided subsequently. But
let us isolate that principle first. Let us have Congress vote
on the determination of whether citizens of the District of
Columbia in their role as citizens of the United States should
have that right to vote is exactly the way to go.
Second, what you have said is that until that voting right
has been achieved, citizens of the District should be given
status comparable to citizens in the territories, which is to
say if you cannot vote with the full rights and privileges
pertaining thereto, as with other citizens, you should be given
an exemption from Federal taxation comparable to those
residents who live in the territories, and it does seem to me
that frames the issue in its most simple and yet its purest
term, to allow voting rights to be conferred on behalf of the
citizens.
Now, in the event that Congress, or rather that the courts
determine that is an unconstitutional grant of authority on
behalf of District residents, the amendment process is still
open and certainly the way has been cleared to determine that
anything less than that would be inadequate. But as a first
step, it seems to me that getting Congress to recognize the
importance of the right, isolating that issue, asking Members
of Congress to vote on the pure question of whether they
believe District residents are entitled to the right to vote,
and if they are not entitled to the right, or are entitled to
the right to vote, should they have it or should they not in
terms of the taxation that they pay it seems to me is the way
to go.
So I would suggest that while Professor Kurland's arguments
may have some relevance and pertinence down the road, it is
only after we have tried this first step, it seems to me,
before we then get to the question of whether a constitutional
amendment is required, and I see that, therefore, as a straw
man, an issue that, in fact, has been raised as a barrier but,
in fact, has never been legitimately tested in terms of its
functions.
Chairman Lieberman. I thank you for that statement. I
cannot speak for Congresswoman Norton, but I say for myself, I
do not think I could have said it better myself. The point is
that we are trying to get our colleagues here to focus on the
principle and the rights that go to residents of the District
because they are citizens of the United States, and then to go
to what the exact form of remedy is, if you will, or of
granting those rights.
But the other point, although we understand that,
practically, residents of--we are not asking for no taxation
nor is it a practical goal. On the other hand, the underlying
principle that we are trying to elevate and educate our
colleagues with is, in fact, validated by the reference you
make and one other witness made to the territories, because
there, the residents of territories do not have voting rights
and they pay no taxes. So this is not just a rhetorical
flourish based on the no taxation without representation
history, but it, I think, underlines the principle that we are
trying to make here.
I regret that there is a vote on now and so I cannot stay
as long as I would like, but Professor Kurland, do you want to
give me a quick response to the comments of your colleagues on
this panel? Now, I would say that two law professors are on
either side.
Mr. Kurland. It is not uncommon that in any forum on this
issue I am always outnumbered. [Laughter.]
But again, I am here doing, I believe, a civic duty in
raising legitimate constitutional legal issues. I have no stake
in this one way or another. It is only when I am with Professor
Raskin that I get castigated as a conservative, which I think I
am not. I mean, I am a registered Democrat. I voted for
Presidential electors for Lieberman and Gore in the State of
Maryland proudly. [Laughter.]
Mr. Kurland. Recognizing that I had no direct vote----
Chairman Lieberman. My respect for your judgment is
improving, increasing. [Laughter.]
Mr. Kurland. But what is important is that while it might
be easy to kind of try to marginalize the constitutional issues
I raised, it is done in manners that, I respectfully submit, is
really not intellectually accurate, and let me just make a
couple of brief points because I know we are short on time.
The abomination of slavery was not taken out of the
Constitution by Civil War. It required a constitutional
amendment. The women's right to vote required a constitutional
amendment. D.C.'s ability to cast electoral votes for
President, constitutional amendment. The District to be treated
even temporarily as a territory, well, the District gets to
vote for President, your three electoral votes. But if the No
Taxation Without Representation, if the argument is to be just
like the territories, that would unravel a variety of other
legal issues where the District is treated differently than the
territories. I am not sure that makes a lot of sense.
Chairman Lieberman. Forgive me, because I am going to miss
the vote. It also gives me the chance to have the last word,
and in this case to say that, on the other hand, Statehood is
conferred by statute. Now, I understand it implicates different
provisions of the Constitution, but the grant of Statehood,
notwithstanding all the instances you have given of what had to
occur through constitutional amendments----
Mr. Kurland. That is correct. Statehood is granted by
statute, but that would put the--there are a variety of other
constitutional issues which Statehood raises that we have not
discussed here, but Statehood is passed by a simple majority of
both Houses, signed by the President, and that would make New
Columbia or whatever the 51st State would be called on equal
footing and would be a State, entitled to representation in the
Federal legislature in both Houses of Congress.
Chairman Lieberman. Thank you. This has been a very
stimulating panel and maybe we will do it again sometime soon
when we come back.
I thank you all. It has been for me a very important day.
All the documents that have been referred to will be entered
into the formal record of the hearing. We will leave the record
of the hearing open for 2 weeks, if others wish to submit
testimony or additional submissions for the record.
I would like to insert in the record a statement from Betty
Ann Kane \1\ on behalf of the Board of Directors of the
Committee for the Capital City and an article entitled
``Implicit Statehood'' by Timothy Cooper, Charles Wesley
Harris, and Mark David Richards.\2\
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Kane with attachments appears in
the Appendix on page 171.
\2\ Article entitled ``Implicit Statehood'' by Timothy Cooper,
Charles Wesley Harris, and Mark David Richards appears in the Appendix
on page 174.
---------------------------------------------------------------------------
I just want to state again, and I hope this message is
clear after the hearing, Congresswoman Norton and I and our
cosponsors are quite serious about this and we are going to
pursue it to the best of our ability in the months and years
ahead. I thank all of you for contributing to a very important
hearing.
We are adjourned.
[Whereupon, at 4:30 p.m., the Committee was adjourned.]
A P P E N D I X
----------
PREPARED STATEMENT OF SENATOR BUNNING
Thank you, Mr. Chairman.
Today this Committee is discussing voting rights for the residents
of the District of Columbia. I realize this is an important issue to
many of the people who live in the city. Over the past several years,
there have been several proposals to deal with this issue, including
granting statehood to the District which would add two Senators and at
least one Representative to Congress. Others have suggested giving the
District's non-Federal area back to Maryland or allowing D.C. residents
to vote in Maryland.
One of the most important things we should remember is that the
nation's capital was created on land originally part Virginia and
Maryland. The founders didn't consider the city a state and didn't
provide for representation in Congress.
Even the city's name reflects the fact that it is not a State. It's
a ``district.''
As for allowing Maryland to take control of the District's non-
Federal land, this at least makes sense. In fact, the areas of
Arlington and Alexandria in Virginia which were originally part of the
District were given back to Virginia in the 1840's, so there is at
least some precedence for this.
I have a feeling that this issue won't be resolved anytime soon.
However, I appreciate the time our witnesses have taken to be here
today, and I am looking forward to hearing from them.
Thank you.
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