[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                         DISTRICT OF COLUMBIA 
                    HOUSE VOTING RIGHTS ACT OF 2007

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 1433

                               ----------                              

                             MARCH 14, 2007

                               ----------                              

                            Serial No. 110-7

                               ----------                              

         Printed for the use of the Committee on the Judiciary


   Available via the World Wide Web: http://judiciary.house.govFOR 
                               SPINE deg.
          DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2007


                         DISTRICT OF COLUMBIA 
                    HOUSE VOTING RIGHTS ACT OF 2007

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 1433

                               __________

                             MARCH 14, 2007

                               __________

                            Serial No. 110-7

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                    U.S. GOVERNMENT PRINTING OFFICE
33-993                      WASHINGTON : 2007
_____________________________________________________________________________
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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York          LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California           JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 14, 2007

                              TEXT OF BILL

                                                                   Page
H.R. 1433, the ``District of Columbia House Voting Rights Act of 
  2007''.........................................................     1

                           OPENING STATEMENT

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     5
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     6

                               WITNESSES

Mr. Viet D. Dinh, Professor of Law and co-Director, Asian Law and 
  Policy Studies, Georgetown University Law Center
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Mr. Bruce V. Spiva, Partner, Spiva and Hartnett, LLP
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31
Mr. Jonathan Turley, Professor of Law, George Washington 
  University Law School
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39
Mr. Richard P. Bress, Partner, Latham & Watkins, LLP
  Oral Testimony.................................................    81
  Prepared Statement.............................................    83

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................   128
Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, Committee 
  on the Judiciary...............................................   133
Material for the hearing record submitted by Bruce V. Spiva, 
  Partner, Spiva and Hartnett, LLP:
    Survey entitled, ``U.S. Public Opinion on DC Voting Rights,'' 
      conducted for DC Vote by KRC Research, January 2005........   134
    Report of the Inter-American Commission on Human Rights, 
      Organization of American States............................   172
    ``Democracy, Human Rights and Humanitarian Questions,'' 
      Chapter III of the Washington, DC Declaration of the 
      Organization for Security and Cooperation in Europe (OSCE) 
      Parliamentary Assembly and Resolutions Adopted at the 
      Fourteenth Annual Session..................................   206
    Report by the United Nations Human Rights Committee..........   212
    Letter from Twenty-Five Legal Scholars Supporting the 
      Constitutionality of DC Voting Rights......................   224
Material for the hearing record submitted by the Honorable John 
  Conyers, Jr., Chairman, Committee on the Judiciary:
    Congressional Research Service (CRS) Memo, Subject: 
      Constitionality of Congress Creating an At-large Seat for a 
      Member of Congress.........................................   226
    Letter from the Leadership Conference on Civil Rights........   230
    Letter from the National Urban League........................   233
    Letter from the League of Women Voters.......................   234
    Letter from People for the American Way......................   235
    Letter from the United Food & Commercial Workers 
      International Union (UFCW).................................   236
    Letter from the American Jewish Committee (AJC)..............   237
    Letter from the NATIONAL ASSOCIATION OF REALTORS............   238
Material for the hearing record submitted by the Honorable Lamar 
  Smith, Ranking Member, Committee on the Judiciary:
    Article published in Roll Call entitled ``Too Clever by Half: 
      the Unconstitutional D.C. Voting Rights Bill,'' January 25, 
      2007, by Jonathan Turley...................................   240
    Article published in Roll Call entitled ``Democracy for D.C.: 
      Allow Statehod, Not `Voting Rights' '' January 25, 2007, by 
      Scott McLarty..............................................   242
    Article published in Roll Call entitled ``CRS Doubts 
      Constitutionality of D.C. Bill,'' February 13, 2007, by 
      Elizabeth Brotherton.......................................   244
    Article published in The National Review entitled ``Hammering 
      to Fit,'' September 18, 2006, by Matthew J. Franck.........   246
    Article published in The Washington Post entitled 
      ``Statehood: The Best Path for D.C.,'' Sunday, February 11, 
      2007.......................................................   249
    Article published in Roll Call entitled ``Full Representation 
      for Washington--the Constitutional Way,'' January 25, 2007, 
      by Rep. Dana Rohrabacher...................................   251
    CRS Report for Congress entitled ``District of Columbia 
      Voting Representation in Congress: An Analysis of 
      Legislative Proposals,'' Updated January 30, 2007, Eugene 
      Boyd, Analyst, Government and Finance Division.............   253
    CRS Report for Congress entitled ``The Constitutionality of 
      Awarding the Delegate for the District of Columbia a Vote 
      in the House of Representatives or the Committee of the 
      Whole,'' January 24, 2007, Kenneth R. Thomas, Legislative 
      Attorney, American Law Division............................   279
Letter from DC for Democracy.....................................   302
Letter from Democracy for Utah...................................   304
Letter from the American Bar Association (ABA)...................   306
Additional Material submitted by Richard P. Bress, Partner, 
  Latham & Watkins, LLP..........................................   310


                         DISTRICT OF COLUMBIA 
                    HOUSE VOTING RIGHTS ACT OF 2007

                              ----------                              


                       WEDNESDAY, MARCH 14, 2007

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:15 a.m. in 
Room 2141, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Committee) presiding.
    Present: Representatives Conyers, Berman, Nadler, Scott, 
Jackson Lee, Cohen, Johnson, Gutierrez, Ellison, Smith, 
Sensenbrenner, Coble, Gallegly, Goodlatte, Chabot, Lungren, 
Cannon, Keller, Issa, Pence, Forbes, King, Feeney, Franks, 
Gohmert and Jordan.
    Staff Present: Perry Apelbaum, Chief Counsel and Staff 
Director; Kanya Bennett, Counsel; Joseph Gibson, Chief Minority 
Counsel; and Paul Taylor, Minority Counsel.
    [The bill, H.R. 1433, follows:]

HR 1433 IH  ___________________________________________________
                               

 deg.

                                                                      I
110th CONGRESS
    1st Session

                                H. R. 1433

To provide for the treatment of the District of Columbia as a 
    Congressional district for purposes of representation in the House 
    of Representatives, and for other purposes.
                               __________

                    IN THE HOUSE OF REPRESENTATIVES

                             March 9, 2007

Ms. Norton (for herself, Mr. Tom Davis of Virginia, Mr. Conyers, Mr. 
    Platts, Mr. Waxman, Mr. Shays, Mr. Hoyer, Mr. Issa, Mr. Nadler, Mr. 
    Porter, and Mr. Matheson) introduced the following bill; which was 
    referred to the Committee on the Judiciary, and in addition to the 
    Committee on Oversight and Government Reform, for a period to be 
    subsequently determined by the Speaker, in each case for 
    consideration of such provisions as fall within the jurisdiction of 
    the committee concerned
                               __________

                                 A BILL

To provide for the treatment of the District of Columbia as a 
    Congressional district for purposes of representation in the House 
    of Representatives, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``District of Columbia House Voting 
Rights Act of 2007''.

SEC. 2. FINDINGS.

    Congress finds as follows:
            (1) Over half a million people living in the District of 
        Columbia, the capital of our democratic Nation, lack direct 
        voting representation in the United States Senate and House of 
        Representatives.
            (2) District of Columbia residents have fought and died to 
        defend our democracy in every war since the War of 
        Independence.
            (3) District of Columbia residents pay billions of dollars 
        in Federal taxes each year.
            (4) Our Nation is founded on the principles of ``one 
        person, one vote'' and ``government by the consent of the 
        governed''.

SEC. 3. TREATMENT OF DISTRICT OF COLUMBIA AS CONGRESSIONAL DISTRICT.

    (a) In General.--Notwithstanding any other provision of law, the 
District of Columbia shall be considered a Congressional district for 
purposes of representation in the House of Representatives.
    (b) Conforming Amendments Relating to Apportionment of Members of 
House of Representatives.--
            (1) Inclusion of single district of columbia member in 
        reapportionment of members among states.--Section 22 of the Act 
        entitled ``An Act to provide for the fifteenth and subsequent 
        decennial censuses and to provide for apportionment of 
        Representatives in Congress'', approved June 28, 1929 (2 U.S.C. 
        2a), is amended by adding at the end the following new 
        subsection:
    ``(d) This section shall apply with respect to the District of 
Columbia in the same manner as this section applies to a State, except 
that the District of Columbia may not receive more than one Member 
under any reapportionment of Members.''.
            (2) Clarification of determination of number of 
        presidential electors on basis of 23rd amendment.--Section 3 of 
        title 3, United States Code, is amended by striking ``come into 
        office;'' and inserting the following: ``come into office 
        (subject to the twenty-third article of amendment to the 
        Constitution of the United States in the case of the District 
        of Columbia);''.
    (c) Conforming Amendments Regarding Appointments to Service 
Academies.--
            (1) United states military academy.--Section 4342 of title 
        10, United States Code, is amended--
                    (A) in subsection (a), by striking paragraph (5); 
                and
                    (B) in subsection (f), by striking ``the District 
                of Columbia,''.
            (2) United states naval academy.--Such title is amended--
                    (A) in section 6954(a), by striking paragraph (5); 
                and
                    (B) in section 6958(b), by striking ``the District 
                of Columbia,''.
            (3) United states air force academy.--Section 9342 of title 
        10, United States Code, is amended--
                    (A) in subsection (a), by striking paragraph (5); 
                and
                    (B) in subsection (f), by striking ``the District 
                of Columbia,''.
            (4) Effective date.--This subsection and the amendments 
        made by this subsection shall take effect on the date on which 
        a Representative from the District of Columbia takes office for 
        the One Hundred Tenth Congress.

SEC. 4. INCREASE IN MEMBERSHIP OF HOUSE OF REPRESENTATIVES.

    (a) Permanent Increase in Number of Members.--Effective with 
respect to the One Hundred Tenth Congress and each succeeding Congress, 
the House of Representatives shall be composed of 437 Members, 
including any Members representing the District of Columbia pursuant to 
section 3(a).
    (b) Reapportionment of Members Resulting From Increase.--
            (1) In general.--Section 22(a) of the Act entitled ``An Act 
        to provide for the fifteenth and subsequent decennial censuses 
        and to provide for apportionment of Representatives in 
        Congress'', approved June 28, 1929 (2 U.S.C. 2a(a)), is amended 
        by striking ``the then existing number of Representatives'' and 
        inserting ``the number of Representatives established with 
        respect to the One Hundred Tenth Congress''.
            (2) Effective date.--The amendment made by paragraph (1) 
        shall apply with respect to the regular decennial census 
        conducted for 2010 and each subsequent regular decennial 
        census.
    (c) Special Rules for Period Prior to 2012 Reapportionment.--
            (1) Transmittal of revised statement of apportionment by 
        president.--Not later than 30 days after the date of the 
        enactment of this Act, the President shall transmit to Congress 
        a revised version of the most recent statement of apportionment 
        submitted under section 22(a) of the Act entitled ``An Act to 
        provide for the fifteenth and subsequent decennial censuses and 
        to provide for apportionment of Representatives in Congress'', 
        approved June 28, 1929 (2 U.S.C. 2a(a)), to take into account 
        this Act and the amendments made by this Act.
            (2) Report by clerk.--Not later than 15 calendar days after 
        receiving the revised version of the statement of apportionment 
        under paragraph (1), the Clerk of the House of Representatives, 
        in accordance with section 22(b) of such Act (2 U.S.C. 2a(b)), 
        shall send to the executive of each State a certificate of the 
        number of Representatives to which such State is entitled under 
        section 22 of such Act, and shall submit a report to the 
        Speaker of the House of Representatives identifying the State 
        (other than the District of Columbia) which is entitled to one 
        additional Representative pursuant to this section.
            (3) Requirements for election of additional member.--During 
        the One Hundred Tenth Congress, the One Hundred Eleventh 
        Congress, and the One Hundred Twelfth Congress--
                    (A) notwithstanding the Act entitled ``An Act for 
                the relief of Doctor Ricardo Vallejo Samala and to 
                provide for congressional redistricting'', approved 
                December 14, 1967 (2 U.S.C. 2c), the additional 
                Representative to which the State identified by the 
                Clerk of the House of Representatives in the report 
                submitted under paragraph (2) is entitled shall be 
                elected from the State at large; and
                    (B) the other Representatives to which such State 
                is entitled shall be elected on the basis of the 
                Congressional districts in effect in the State for the 
                One Hundred Ninth Congress.
    (d) Seating of New Members.--The first Representative from the 
District of Columbia and the first additional Representative to which 
the State identified by the Clerk of the House of Representatives in 
the report submitted under subsection (c) is entitled shall each be 
sworn in and seated as Members of the House of Representatives on the 
same date.

SEC. 5. REPEAL OF OFFICE OF DISTRICT OF COLUMBIA DELEGATE.

    (a) Repeal of Office.--
            (1) In general.--Sections 202 and 204 of the District of 
        Columbia Delegate Act (Public Law 91-405; sections 1-401 and 1-
        402, D.C. Official Code) are repealed, and the provisions of 
        law amended or repealed by such sections are restored or 
        revived as if such sections had not been enacted.
            (2) Effective date.--The amendments made by this subsection 
        shall take effect on the date on which a Representative from 
        the District of Columbia takes office for the One Hundred Tenth 
        Congress.
    (b) Conforming Amendments to District of Columbia Elections Code of 
1955.--The District of Columbia Elections Code of 1955 is amended as 
follows:
            (1) In section 1 (sec. 1-1001.01, D.C. Official Code), by 
        striking ``the Delegate to the House of Representatives,'' and 
        inserting ``the Representative in the Congress,''.
            (2) In section 2 (sec. 1-1001.02, D.C. Official Code)--
                    (A) by striking paragraph (6); and
                    (B) in paragraph (13), by striking ``the Delegate 
                to Congress for the District of Columbia,'' and 
                inserting ``the Representative in the Congress,''.
            (3) In section 8 (sec. 1-1001.08, D.C. Official Code)--
                    (A) in the heading, by striking ``Delegate'' and 
                inserting ``Representative''; and
                    (B) by striking ``Delegate,'' each place it appears 
                in subsections (h)(1)(A), (i)(1), and (j)(1) and 
                inserting ``Representative in the Congress,''.
            (4) In section 10 (sec. 1-1001.10, D.C. Official Code)--
                    (A) in subsection (a)(3)(A)--
                            (i) by striking ``or section 206(d) of the 
                        District of Columbia Delegate Act'', and
                            (ii) by striking ``the office of Delegate 
                        to the House of Representatives'' and inserting 
                        ``the office of Representative in the 
                        Congress'';
                    (B) in subsection (d)(1), by striking ``Delegate,'' 
                each place it appears; and
                    (C) in subsection (d)(2)--
                            (i) by striking ``(A) In the event'' and 
                        all that follows through ``term of office,'' 
                        and inserting ``In the event that a vacancy 
                        occurs in the office of Representative in the 
                        Congress before May 1 of the last year of the 
                        Representative's term of office,'' and
                            (ii) by striking subparagraph (B).
            (5) In section 11(a)(2) (sec. 1-1001.11(a)(2), D.C. 
        Official Code), by striking ``Delegate to the House of 
        Representatives,'' and inserting ``Representative in the 
        Congress,''.
            (6) In section 15(b) (sec. 1-1001.15(b), D.C. Official 
        Code), by striking ``Delegate,'' and inserting ``Representative 
        in the Congress,''.
            (7) In section 17(a) (sec. 1-1001.17(a), D.C. Official 
        Code), by striking ``the Delegate to the Congress from the 
        District of Columbia'' and inserting ``the Representative in 
        the Congress''.

SEC. 6. REPEAL OF OFFICE OF STATEHOOD REPRESENTATIVE.

    (a) In General.--Section 4 of the District of Columbia Statehood 
Constitutional Convention Initiative of 1979 (sec. 1-123, D.C. Official 
Code) is amended as follows:
            (1) By striking ``offices of Senator and Representative'' 
        each place it appears in subsection (d) and inserting ``office 
        of Senator''.
            (2) In subsection (d)(2)--
                    (A) by striking ``a Representative or'';
                    (B) by striking ``the Representative or''; and
                    (C) by striking ``Representative shall be elected 
                for a 2-year term and each''.
            (3) In subsection (d)(3)(A), by striking ``and 1 United 
        States Representative''.
            (4) By striking ``Representative or'' each place it appears 
        in subsections (e), (f), (g), and (h).
            (5) By striking ``Representative's or'' each place it 
        appears in subsections (g) and (h).
    (b) Conforming Amendments.--
            (1) Statehood commission.--Section 6 of such Initiative 
        (sec. 1-125, D.C. Official Code) is amended--
                    (A) in subsection (a)--
                            (i) by striking ``27 voting members'' and 
                        inserting ``26 voting members'';
                            (ii) by adding ``and'' at the end of 
                        paragraph (5); and
                            (iii) by striking paragraph (6) and 
                        redesignating paragraph (7) as paragraph (6); 
                        and
                    (B) in subsection (a-1)(1), by striking 
                subparagraph (H).
            (2) Authorization of appropriations.--Section 8 of such 
        Initiative (sec. 1-127, D.C. Official Code) is amended by 
        striking ``and House''.
            (3) Application of honoraria limitations.--Section 4 of 
        D.C. Law 8-135 (sec. 1-131, D.C. Official Code) is amended by 
        striking ``or Representative'' each place it appears.
            (4) Application of campaign finance laws.--Section 3 of the 
        Statehood Convention Procedural Amendments Act of 1982 (sec. 1-
        135, D.C. Official Code) is amended by striking ``and United 
        States Representative''.
            (5) District of columbia elections code of 1955.--The 
        District of Columbia Elections Code of 1955 is amended--
                    (A) in section 2(13) (sec. 1-1001.02(13), D.C. 
                Official Code), by striking ``United States Senator and 
                Representative,'' and inserting ``United States 
                Senator,''; and
                    (B) in section 10(d) (sec. 1-1001.10(d)(3), D.C. 
                Official Code), by striking ``United States 
                Representative or''.
    (c) Effective Date.--The amendments made by this section shall take 
effect on the date on which a Representative from the District of 
Columbia takes office for the One Hundred Tenth Congress.

SEC. 7. NONSEVERABILITY OF PROVISIONS.

    If any provision of this Act, or any amendment made by this Act, is 
declared or held invalid or unenforceable, the remaining provisions of 
this Act and any amendment made by this Act shall be treated and deemed 
invalid and shall have no force or effect of law.
                                 



    Mr. Conyers. The hearing will come to order.
    Good morning, ladies and gentlemen, Members of the 
Judiciary, our honored witnesses, and friends all assembled. 
This is a great day. We are the only democracy in the world 
where citizens living in the capital city are denied 
representation in their legislature, and we are here to see if 
that can be changed.
    It was some 45 years ago that residents of the District 
finally got home rule. I was a Member of this Committee in 1967 
when Chairman Emanuel Celler introduced and reported 
legislation that would give the District a vote.
    I was here in 1978 when this Committee and this Congress 
passed a constitutional amendment to give the District voting 
representation.
    Last Congress, the 109th, we got even closer to passing 
legislation, and I thank publicly many Members of this 
Committee, including the past Chairmen, for their efforts.
    We had bipartisan legislation that has now passed out of 
the Government Reform Committee, a big first step, and now we 
are about to take in the Committee of the Judiciary a very 
large second step.
    Now the thing we need to examine is the fact that D.C., the 
District of Columbia and its citizens are treated as a State in 
so many instances; and it is on the military side, as a Korean 
veteran, that I remind all of us here that we have D.C. 
residents serving in Iraq right at this moment. Some have 
already given their lives in this cause.
    They have been in American wars since the first 
Revolutionary War, and it seems as if this might be a reason 
for them deserving a vote. In World War I, they were there. In 
the Vietnam War, they were there. In World War II, they were 
there. In the Korean War, they were there.
    So with 44,000 veterans or more here in the District of 
Columbia, many who are loyal patriots, billions of dollars 
being spent in taxes, we are here today to receive testimony 
concerning the constitutionality of the legislation before us.
    In one sense, the overriding question is, can we in the 
Congress make this a voting State or have the rights of a 
voting State at all? Can we do this? Can we do what has not 
been prevented from being done in any capital in the world? And 
the other question is, does one man, one vote somehow prevent 
Utah from making the adjustments that are required in this 
matter?
    Now, controlling all of this is article I, section 8, the 
District clause, which provides Congress with the authority to 
give the District a vote. The Supreme Court has ruled in this 
matter. The District is national in the highest sense. The D.C. 
Circuit Court has ruled. The Court of Appeals in the District 
has made its understanding of the constitutional questions 
clear, and there are many other contexts where Congress has 
used the District clause to give District rights and privileges 
reserved for the States.
    For diversity jurisdiction, 11th amendment immunity, 
collection of State taxes, all of these have been upheld; and 
so it seems not only the balance of commonsense but fairness 
that we can also grant our citizens here the right to elect a 
voting representative. Half a million members of this District 
of Columbia have strong, equitable claims; and we want to hear 
them.
    We have got a very good Committee. We have got a very good 
panel of witnesses. I want to thank you all so very much, and I 
would now like to turn the time over to the Ranking Member of 
the Judiciary Committee from Texas, Mr. Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, in my opening statement at the organizational 
meeting of the Judiciary Committee in January, I commented that 
what makes this Committee extraordinary to me is that it serves 
as the guardian of the Constitution. So I am troubled by the 
legislation we are having a hearing on today, because I believe 
it exceeds constitutional bounds. Let me summarize some of the 
constitutional problems legal scholars have with this bill.
    Supporters of the bill claim Congress has the authority to 
enact this bill under the so-called District clause in article 
I, section 8, which states, quote, the Congress shall have 
power to exercise exclusive legislation in all cases 
whatsoever, over such District as may, by cession of particular 
States, and the acceptance of Congress, become the seat of the 
government of the United States. End quote.
    However, that very clause would seem to constitutionally 
doom this legislation, as it clearly implies that D.C. is not a 
State; and article I, section 2, clearly states that, quote, 
the House of Representatives shall be composed of Members 
chosen every second year by the people of the several States.
    Since D.C. is not a State, it cannot have a voting Member 
in the House. That is not even a tough law school exam 
question.
    In 2000, a Federal District Court in D.C. stated, quote, we 
conclude from the analysis of the text that the Constitution 
does not contemplate that the District may serve as a State for 
purposes of the apportionment of congressional representatives, 
end quote.
    Supporters of the bill point for precedent to a case 
decided by the Supreme Court in 1949 that upheld a Federal law 
extending the diversity jurisdiction of the Federal courts to 
hear cases in which D.C. residents were parties.
    But as the Congressional Research Service stated in a 
recent report, the plurality opinion in that case took pains to 
note the limited impact of their holding. The plurality 
specifically limited the scope of its decision to cases which 
did not involve an extension of any fundamental right, end 
quote. Such, of course, as the right to vote for a Member of 
Congress.
    If that 1949 Supreme Court case does what proponents of the 
bill says it does, then there was no need for Congress in 1978 
to consider a constitutional amendment on the subject. That 
amendment failed to get the approval of three-quarters of the 
States over a 7-year period. In fact, only 16 of the 38 States 
required for its ratification supported the amendment.
    What is being attempted by the legislation discussed today 
is something long recognized as requiring a constitutional 
amendment that the vast majority of States have already failed 
to approve. Even conceding for purposes of argument the 
proponents' interpretation of the vast breadth of the District 
clause, the bill unfairly subjects many citizens to unequal 
treatment. H.R. 1433 grants Utah an additional representative 
that will run at large or statewide, rather than in the 
individual district provided for in the redistricting plan the 
Utah legislature went to great effort to pass last year.
    The at-large provision creates a situation this country has 
not seen since the development of the Supreme Court's line of 
cases affirming the principle of, quote, one man, one vote. 
Under this provision, voters in Utah would be able to vote for 
two representatives, their own district representative and 
their at-large representative, whereas voters in every other 
State would only be able to vote for their one district 
representative. The result would be that Utah voters would have 
disproportionately more voting power compared to the voters of 
every other State.
    Mr. Chairman, with these and other very serious 
constitutional concerns in mind, I look forward to hearing from 
our witnesses today. And, Mr. Chairman, let me also say to our 
witnesses that, unfortunately, I am going to need to leave in a 
few minutes to go to the House floor to speak, but I hope to be 
back after a short period of time.
    With that, Mr. Chairman, I will yield back my time.
    Mr. Conyers. Thank you.
    We will include, without objection, the opening statements 
of any of our other colleagues.
    Our first witness is Viet Dinh, a professor now at 
Georgetown University but formerly the U.S. Assistant Attorney 
General for Legal Policy at the Department of Justice. He is a 
founder of Bancroft Associates.
    Our next witness is Bruce Spiva, who is a founding partner 
of Spiva and Hartnett, previously a partner at Jenner and 
Block. He is the Chair of the Board of the D.C. Vote, an 
organization committed to securing congressional rights for 
District residents.
    Next is Jonathan Turley, a professor of law at George 
Washington University, who joined the faculty in 1990 and in 
1998 became the youngest chaired professor in the school's 
history. He is nationally recognized as a legal commentator and 
is the second most cited law professor in the country.
    The last witness is Rick Bress, a partner at Latham & 
Watkins. Before joining that firm, Mr. Bress was assistant to 
the Solicitor General of the United States. Mr. Bress also 
served as law clerk to Justice Antonin Scalia and to D.C. 
Circuit Judge Stephen Williams.
    We welcome you, gentlemen. Your written statements will be 
made part of the record in their entirety, and you know the 
drill from this point on.
    So we would invite Mr. Dinh to begin his comments. Welcome.

  TESTIMONY OF VIET D. DINH, PROFESSOR OF LAW AND CO-DIRECTOR 
 ASIAN LAW AND POLICY STUDIES, GEORGETOWN UNIVERSITY LAW CENTER

    Mr. Dinh. Thank you very much, Mr. Chairman. Thank you very 
much, Ranking Member Smith.
    This is a difficult issue that this Committee is facing 
today and this House is facing in the future. The arguments 
against the constitutionality of the bill that you are 
considering are significant, and they are very 
characteristically, cogently and concisely summarized by Mr. 
Smith.
    The arguments in concert to those--in that summary is 
presented in my written statement; and it is supported, of 
course, as you know, by my colleague, Ken Starr, and also the 
ABA. I would not summarize them here, but I do want to use the 
opening minutes in order to focus on one period in our Nation's 
history that is, I think, in my mind the most analogous period 
to the question that is presented to Congress here.
    As you know, Maryland and Virginia ceded land to create the 
District of Columbia; and Congress accepted that land in 1790. 
However, the seat of government needed to be established here, 
as opposed to Philadelphia. So there was a lag of 10 years 
where there was no seat of government in the 10-mile-square 
District that we see today.
    During that 10-year period, the residents formerly of 
Virginia and of Maryland continued to exercise their vote. 
However, the critical point here is that they continued to vote 
not as the residual right of their citizenship of Maryland and 
Virginia, because case law is unanimous on this point that the 
cession and acceptance of Congress had ended the jurisdiction 
of Maryland and Virginia during that period. Rather, the 
acceptance of the cession by Congress in 1790 provided that the 
operation of laws of Maryland and Virginia would continue 
pending the transitional period. This was a condition upon 
which Maryland and Virginia ceded their land, and this was 
accepted by Congress in the Act of 1790 accepting the land.
    During this period, it is my contention, although it is not 
specifically addressed by the court, I acknowledge, that the 
right of District residents to vote and also all the other 
residual operational law of Maryland and Virginia operated not 
as a matter of State law but rather as a matter of Federal law, 
provided by the Act of 1790. Because, as I said before, the 
cession and acceptance had completed the transfer of 
jurisdiction, formal constitutional jurisdiction, of the States 
pending the creation of the District in 1800, the first Monday 
in 1800. It is only when Congress replaced the prevailing law 
of Maryland and Virginia at that time with legislation in 1801 
that the right to vote was omitted.
    I think this is critical in that it showed that Congress 
had the power to provide District residents the right to vote 
even though such right can be seen as residual or transitional. 
However, if one accepts, as I think one must in the court's 
unbroken jurisprudence, that the cession and acceptance 
completed the act of transfer of jurisdiction to the Federal 
Government and did not persist with the State government, then 
that source of congressional authority to provide such similar 
operation of law and similarly, with the recognition of the 
right to government notwithstanding, that this no-man's land 
within that 10-year period was not a State.
    The source of that authority is, of course, as Mr. Smith 
has pointed out, is article I, section 8 the District clause.
    I recognize, of course, that article I, section 2 
apportions representatives among the people of several States; 
and this is a very weighty restriction. Just as it is article 3 
restricts diversity of jurisdiction to the citizens of several 
States; just as the treaty clause likewise restricts; such as 
the tax apportionments clause likewise restricts; just as the 
commerce clause gives Congress only the power to regulate 
commerce amongst the several States.
    Notwithstanding these express reservations to the citizens 
or the States themselves referenced to the States, courts have 
consistently held that the District can be considered a State 
or the citizen of a District can be treated like citizens of a 
State for the purpose of all these other provisions.
    I understand that courts have not addressed this issue. I 
also understand that the D.C. Circuit in Adams v. Clinton has 
rejected a sui generis inherent right of District residents to 
have a right to vote under article I, section 2. But the 
question before Congress today is not whether District 
residents have an inherent right to vote under the 
Constitution, the question addressing Adams v. Clinton, but 
rather whether Congress has the power to so legislate. And I 
think Chief Justice Marshall's opinion in Hepburn, the 
plurality opinions in Tidewater and also dictum from Adams v. 
Clinton leaves open the question for Congress to so act.
    I do think that, given the weight of authority and given 
the entire structure and history of the Constitution, that this 
Congress has ample constitutional authority in article I, 
section 8, the District clause and elsewhere, in order to give 
the District of Columbia residents the right to elect a 
representative and be treated as if they were citizens of 
several States for article I, section 2 purposes.
    Thank you very much.
    Mr. Conyers. Thank you so much.
    [The prepared statement of Mr. Dinh follows:]

                   Prepared Statement of Viet D. Dinh




    Mr. Conyers. The Chairman notes the presence of Delegate 
Eleanor Holmes Norton and Mayor Adrian Fenty of the District of 
Columbia.
    Mr. Spiva, welcome to the Committee.

             TESTIMONY OF BRUCE V. SPIVA, PARTNER, 
                    SPIVA AND HARTNETT, LLP

    Mr. Spiva. Thank you, Mr. Chairman. Congressman Smith, 
Members of the Committee, thank you for this opportunity to 
testify at this historic hearing.
    I dedicate my testimony today to the memory of Darryl T. 
Dent, Gregory E. MacDonald, Paul W. Kimbrough, and Kevin M. 
Shea, the four men from the District of Columbia who lost their 
lives in the service of our country and democracy in Iraq and 
Afghanistan.
    Mr. Chairman, I am proud to chair the Board of Directors of 
D.C. Vote, an organization whose mission is to secure full 
voting representation in Congress for Americans living in our 
Nation's capital.
    The people of the District of Columbia, as Mr. Chairman has 
noted, have fought and died for our country in every war since 
the founding of our Republic. We fight for democracy abroad, 
and yet we are denied it here at home. We pay Federal and local 
taxes, we serve on Federal juries, we have fulfilled every 
responsibility of American citizenship, and yet we have no say 
in the passage of our Nation's laws and do not even have 
ultimate authority over our own local laws and institutions.
    That, Mr. Chairman, is a moral disgrace and a shame on this 
Nation. It is a desecration of our Constitution. It is a denial 
of our civil and human rights, and it must change now.
    In this great city, we have Americans who are teachers, 
firefighters, veterans and students. Some of these citizens are 
here with us today. We are disappointed and angered that we 
have been completely shut out of our Nation's political 
process. We are, as Martin Luther King once said of African-
Americans in this country, exiles in our own land. We are not 
the constituents of any of you and, therefore, can command the 
full devotion of none of you.
    But, despite all of our frustrations, we want you to know 
that we love this country, and we want to make it better. We 
want to make it at least as good as every other democracy in 
the world, not one of which denies the citizens of her capital 
the right to vote.
    A week ago Sunday, many in this body stood with heroic 
Congressman John Lewis to celebrate the 42nd anniversary of the 
march from Selma to Montgomery that led to the passage of the 
historic Voting Rights Act of 1965. The great promise of the 
civil rights era, however, has yet to deliver voting rights for 
the people of the District of Columbia.
    As an African American, I find it appalling that a majority 
Black jurisdiction remains completely disenfranchised this late 
in our Nation's history. But I would also note that this civil 
rights violation crosses all racial, economic, political party 
lines.
    The vast majority of Americans agree that this must be 
changed. In a 2005 KRC research poll, 82 percent of Americans 
across all party lines said they support full voting 
representation for D.C. residents.
    Mr. Chairman, I ask that the poll results be made a part of 
the record of this hearing.
    The international community----
    Mr. Conyers. Without objection, so ordered.
    Mr. Spiva. Thank you, Mr. Chairman.
    Mr. Spiva. The international community has taken note of 
our failure to live up to our democratic ideals. In separate 
opinions, the Organization for American States, the 
Organization for Security and Cooperation in Europe and the 
U.N. Committee on Human Rights have all found that the United 
States is violating international human rights law by denying 
Washingtonians the right to vote.
    Mr. Chairman, I also ask that the reports of those bodies 
be added to the record of this hearing.
    Mr. Conyers. Without objection.
    Mr. Spiva. Some defenders of the status quo argue that 
Washington, D.C., is too small to warrant representation or 
that the people who live here can move out if they wish to 
vote. Those critics do not understand what this country is all 
about. Our country was founded on the principle that every 
American citizen must have an equal right to vote, and a 
government without the consent of the governed is illegitimate. 
And this is true no matter where you live or how big your 
community.
    But, frankly, it is not the words of the opponents of D.C. 
voting rights that cut the deepest. It is the apathy and tepid 
support of those who feel this cause is not worthy of their 
energy.
    Again, the words of Dr. King speak to us today. We will 
have to repent in this generation not merely for the hateful 
words and actions of the bad people but for the appalling 
silence of the good people.
    We have been denied the right to participate in our 
government for over 200 years. It is time, past time for people 
of goodwill to work with concerted energy to remedy this 
injustice immediately.
    As the old proverb goes, a journey of a thousand miles 
begins with a single step. The passage of the D.C. Voting 
Rights Act would be a significant and historic step toward 
justice.
    Mr. Chairman, Congressman Smith, and Members of the 
Committee, we are Americans, and we demand the vote. We hope 
that you will work together to pass the D.C. Voting Rights Act, 
a bill that provides Washingtonians with representation in the 
United States House of Representatives.
    Thank you once again for this opportunity to testify today.
    Mr. Conyers. Thank you for your comments.
    [The prepared statement of Mr. Spiva follows:]

                  Prepared Statement of Bruce V. Spiva



    Mr. Conyers. Professor Turley, welcome.

    TESTIMONY OF JONATHAN TURLEY, PROFESSOR OF LAW, GEORGE 
                WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Turley. Thank you, sir. It is a great honor to appear 
before you, Chairman Conyers, Representative Smith, Members of 
this Committee.
    I would hope that we all agree on one thing, that it is a 
terrible fact that the people of the District of Columbia do 
not have a vote in Congress. I have never spoken to anybody who 
was comfortable with that fact. But, as is often the case in 
our system of law, we are left with a question not of ends but 
means; and at times principle takes us or leaves us in a place 
we don't want to be. This is certainly the place I am sitting 
right now, is a place I would not want to be if I could avoid 
it. But I can't.
    H.R. 1433 is the wrong means. It is, in my view, 
fundamentally flawed on a number of constitutional levels. 
Indeed, to be blunt, I consider this legislation to be the most 
premeditated unconstitutional act of Congress in decades. Now I 
say that even though I respect the people on the other side, I 
respect their motivations, but I cannot square this piece of 
legislation with either the language or the history of the 
Constitution.
    Congress, as you know, cannot legislatively set aside a 
constitutional provision, no matter how much we want to do it. 
You can only do that through a constitutional amendment, and 
the Framers made that very difficult.
    Strikingly, the language of this bill is similar at points 
to the 1978 constitutional amendment. That was defeated. It is 
now an effort to achieve part of the result legislatively. In 
my view, it circumvents article 5 of the Constitution.
    I have also in my testimony addressed the Utah district, 
which I believe now has serious problems with one person, one 
vote.
    I have also included a proposal that I believe would give 
the District of Columbia not partial representation but full 
representation in Congress, and it would be unassailable on a 
constitutional level. I won't address that in my oral comments, 
but it is laid out in my testimony.
    As many of you know, one of the reasons that we have a 
Federal enclave was that, in 1783, when Congress was meeting in 
Philadelphia, a mob formed and threatened the Members of that 
body. They fled. When they met in 1787, that experience was 
still much on their minds, not surprisingly; and they decided 
that, for the security of the Nation, it was better to have a 
seat of government that belonged to no State.
    That was not the only reason. Madison, as I lay out in my 
testimony, stated a number of other reasons why they wanted the 
seat of government in a non-State; and that historical record 
establishes that the District was created openly, expressly to 
be a non-State.
    Now, as you know, most of our constitutional analysis 
begins with the text of the Constitution, and there it should 
end if the text is clear. With due respect to my esteemed 
colleagues with me here today, I believe the text is clear that 
the article I, section 2 language refers to the people of 
several States, refers to State legislatures as a qualifying 
reference; and I think that it is perfectly clear from the face 
and the plain meaning of that language that means States, just 
as the drafters indicated.
    Indeed, I think it takes an act of willful blindness to 
ignore the use of State in this article that, as you know, is 
ubiquitous throughout article I and article 2. That word, 
``State,'' is perhaps one of the most important words in the 
Constitution. You change that word, you change the 
Constitution.
    Indeed, as many of you know, because many of you are 
constitutional scholars, the role of States within our system 
was the structure in question for the Constitutional 
Convention. It was all about States and how they related to 
each other and how they related to the Federal Government.
    If you look at the context of the Constitution, you will 
see that many of the provisions become unintelligible if you 
change the meaning of States, that in various clauses States 
are used in a way that could not possibly include the District 
of Columbia.
    Now if you look also at the later amendments like the 10th 
amendment, like the 23rd amendment, it is equally clear that 
the District is not included in that language, that it is 
incompatible with the interpretation given to it today. Indeed, 
the 23rd amendment states expressly that the District is to be 
treated, quote, as if it were a State. So we have had 
periodically, both in attempted amendments and successful 
amendments, a recognition by Congress that you have to achieve 
voting rights for the District either through a constitutional 
amendment or through retrocession.
    I know my time is running out, and so I will simply add 
this point. It has been stated that this issue was not 
considered by the drafters, and I want to--if I leave you with 
one thing today, it is this: That is not true. I have cited 
repeated references in ratification conventions and the Framers 
where this very issue was debated, and people like Alexander 
Hamilton lost that debate. So this was created as a non-State, 
and the voting issue was considered when that status was 
created. I submit to this Committee that there are ways to do 
this that would be constitutionally unassailable, but they are 
not easy.
    In conclusion, I will tell you a story my father always 
told me when he would correct me on one of the stupider things 
I would do occasionally. He talks about a guy that was looking 
for something underneath a street lamp, and another guy comes 
up to help him. He gets on his knees, and he looks around. An 
hour later he said, Mister, I can't find it. Are you sure you 
dropped your ring here? He said, no, no, no, I didn't drop the 
ring. Here I dropped it down the street, but the light is 
better here.
    The point is, we often go where the light is better. And I 
have to say it is not difficult where I am suggesting that you 
have to go, but that is where you will find the answer. Thank 
you very much.
    Mr. Conyers. You are welcome, and thank you so much.
    [The prepared statement of Mr. Turley follows:]

                 Prepared Statement of Jonathan Turley




    Mr. Conyers. And now, Mr. Bress.

            TESTIMONY OF RICHARD P. BRESS, PARTNER, 
                     LATHAM & WATKINS, LLP

    Mr. Bress. Thank you, Mr. Chairman, distinguished Members 
of the Committee. Thank you for giving me the opportunity to 
speak with you on this occasion in addressing this historic 
bill.
    I will address both Congress's authority to pass 
legislation providing voting representation to residents of the 
District of Columbia and also the constitutionality of the 
provision in the bill under which additional State 
representative provided by the Act would be elected at large.
    As to the first issue, I would certainly agree with my 
esteemed colleagues here that the constitutionality of 
providing the residents the right to vote presents difficult 
constitutional issues. However, I will differ with my 
immediately preceding colleague on the results of that 
analysis.
    To me, history, the language of the District clause and 
Supreme Court precedent suggest that the better understanding 
is that the power of this Congress under the District clause 
includes the ability to provide residents of the District with 
voting representation in the House of Representatives.
    Two related Supreme Court cases confirm the breadth of 
Congress's authority under the District clause. In the first, 
Hepburn v. Ellzey, Chief Justice Marshall construed article 3, 
section 2 of the U.S. Constitution. That provision provides 
diversity jurisdiction in suits between citizens of different 
States, and the court in that case held that that provision 
excluded citizens of the District of Columbia.
    The court found it extraordinary, however, that residents 
of the District should be denied the same access to Federal 
courts that is provided to aliens and State residents, and it 
invited Congress to craft a solution, noting that the matter 
was a subject for legislative and not judicial consideration.
    Nearly 145 years later, Congress accepted that invitation; 
and, in 1940, it enacted a bill that explicitly granted 
District residents access to Federal courts on diversity 
grounds. That legislation was upheld by the Supreme Court in 
1949 in a case called National Mutual Insurance Company v. 
Tidewater Transfer Company. It has been spoken of here already 
this morning as Tidewater.
    The plurality of the Court led by Justice Jackson held that 
Congress could for this purpose, for purposes of diversity 
jurisdiction, treat District residents as though they were 
State residents pursuant to its authority under the District 
clause. Two concurring justices would have gone even further. 
They argued Hepburn should be overruled and that the District 
should be considered a State for purposes of article 3.
    In my view, Tidewater strongly supports Congress's 
authority to provide the District a House of Representative via 
simple legislation. As the plurality explained in that case, 
Congress unquestionably had the greater power to provide 
District residents diversity based jurisdiction in special 
article I courts. The Court concluded from that that the 
Congress could surely accomplish the more limited result of 
granting District residents diversity based access to existing 
article 3 courts.
    Similarly, Congress's authority to grant the District 
residents full rights of State residents for voting purposes by 
granting the District statehood or grant its residents voting 
rights through retrocession can both be accomplished by simple 
legislation; and that suggests that Congress may, by simple 
legislation, take the more modest step of providing citizens of 
the District with a voice in the House of Representatives.
    Indeed, Congress has granted voting representation to 
citizens not actually living in a State on at least two other 
occasions. In Evans v. Cordman, the Supreme Court held that 
residents of Federal enclaves within States, such as NIH, have 
a constitutional right to congressional representation. And 
through the Overseas Voting Act, Congress has provided 
Americans living abroad the right to vote in Federal elections 
as though they were present in their last State of residence in 
the United States.
    There is no reason to suppose that Congress has less 
ability to provide voting representation to residents of the 
Nation's capital. There is certainly no reason to believe that, 
by providing voting representation to State residents, the 
Framers affirmatively intended to deny the vote to residents of 
the Nation's capital.
    I will be happy to address that further, and I have 
addressed that in my comments. If I may, I would like to go on 
for a moment, though, and I know my time is running short, and 
address the one man, one vote provision of the law.
    Under the bill, the vote that would go to the State next 
eligible for a vote would be elected--that seat would be 
elected at large, rather than by creating an additional single-
Member district. Congress plainly, in my view, has the 
authority to create such an at-large seat. Indeed, history 
teaches us that, until 1849, at least seven States voted for 
the representatives at large.
    Of course, under 2 U.S.C., Section 2(a), (c), States can 
still have under that provision an at-large representative 
sitting alongside single District representatives. Now why is 
that constitutional? Well, the Constitution requires that, as 
nearly as practicable, one person's vote in a congressional 
election must have the same weight as another. That is what the 
court held in Westbury v. Sanders.
    An apportionment plan may run afoul of this one person, one 
vote principle when congressional districts within a State 
contain different numbers of residents, diluting the voting 
power of residents in the more populous districts. The proposed 
at-large election of an additional representative would not 
trigger that concern, because it would not dilute the relative 
value of any person's vote in that State.
    Suppose, for example, that Utah is the State entitled to an 
additional seat. Utah currently has three congressional 
districts. If Utah were to hold an at-large election for a new 
fourth seat, all Utah voters would have the right to cast a 
vote in their existing district and a vote in the statewide 
election for the fourth seat. So residents----
    Mr. Conyers. The time of the gentleman has expired.
    Mr. Bress. Thank you, Mr. Chairman.
    Mr. Conyers. You are welcome.
    Mr. Bress. I would be happy to expound on it.
    [The prepared statement of Mr. Bress follows:]

                 Prepared Statement of Richard P. Bress




    Mr. Conyers. All right. I will begin the questioning.
    Attorney Dinh, how can those of us who would like to claim 
to be rigorous constitutional scholars sleep more comfortably 
in our beds tonight after having listened to this testimony and 
feel that we are not making some violation of the Constitution 
which we treasure so highly?
    Mr. Dinh. I think that is a very relevant question. I don't 
think you would sleep very well if one accepts the 
characterization of Professor Turley as to what this 
legislation does. But take faith that is not the only 
characterization nor even the most plausible characterization.
    If one were to try to change the meaning of State within 
the Constitution, I fully agree that you are just opening up a 
Pandora's box in constitutional interpretation and 
inconsistencies. However, the legislation does not purport to 
change the meaning of the definition of State within the 
Constitution. Rather, it seeks to grant District residents the 
same rights as residents of States.
    Similarly, as the court has held consistently in diversity 
jurisdiction, in 11th amendment immunity, sixth amendment right 
under criminal law, the interstate commerce clause, the 
international treaty clause, all of which references rights of 
citizens of States or quasi-States, and yet the court has said 
that Congress may treat District residents as if they are among 
several States.
    In the question of interstate Congress, for example, the 
court says, yes, you can regulate commerce within the District 
just as you would regulate commerce amongst the several States 
precisely because we are not trying to change the meaning of 
the word State.
    What Mr. Turley is referring to really is Justice 
Rutledge's two-person plurality, as opposed to Justice 
Jackson's three-person plurality, which is seen as the 
controlling plurality of Tidewater. In that case, Justice 
Jackson refused to overrule the Hepburn case, of which Mr. 
Bress had noted, in which Justice Marshall says, State means 
State and the District ain't a State. Justice Rutledge would 
overrule that and said District means State.
    I think Justice Jackson, like Justice Marshall before him 
and like dictum in Adams v. Clinton, stands on better footing 
when it says that is a matter for legislative and not judicial 
consideration, legislative consideration under article I, 
section 2 authority, which is plenary authority which the court 
itself does not have as a matter of constitutional 
interpretation.
    Mr. Conyers. Are you, Mr. Bress, aware of an instance in 
which the Congress's exercise of its plenary authority over the 
District was successfully challenged?
    Mr. Bress. No, I am not, Your Honor. There are many 
instances, and some of them have been mentioned by Mr. Dinh 
already this morning, where Congress has exercised plenary 
authority to treat and has treated the District as if it were a 
State; and in none of those cases, to my knowledge, has that 
been successfully challenged.
    Mr. Conyers. Mm-hmm. Now, is it possible that the Congress 
in the 109th session could get this thing so wrong, that the 
Government Operations Committee--old title--could get it so 
wrong and that we are about here to step into a huge 
constitutional problem?
    The reason I keep going back to this is it is not clear to 
me why, with all the democratic improvements in our system of 
justice, in our government, that now we come, after all this 
time, to this critical question we now find that we are 
constitutionally handcuffed.
    Mr. Spiva, do you think we are constitutionally--I mean, 
can we all have goodwill and still not be able to do anything 
on this? The Constitution has got us tied up in knots?
    Mr. Spiva. No, I don't, Mr. Chairman. I think that, as the 
statements of my colleagues have indicated, there is room for a 
difference of opinion. In my view, though, that because there 
are strong arguments for the constitutionality of this 
provision based on the arguments Professor Dinh and Mr. Bress 
have articulated, that those who would say that the potential 
that this might be held unconstitutional should be a reason for 
you to reject it, should really come to this Committee with a 
heavy burden to meet. Because, in every other way, as I tried 
to indicate in my remarks, this is consistent with the 
fundamental principles of our Constitution and the democratic 
traditions of our country.
    So I think that you could feel comfortable passing this, 
that there are strong arguments in favor of its 
constitutionality. Certainly I am sure that there will be 
debates later and probably even court challenges, but I think 
that people of good faith, even though they may disagree, could 
still support this and feel comfortable that they are upholding 
their constitutional duty.
    Mr. Conyers. Thank you.
    The Chair recognizes our Ranking Member, Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Turley, let me ask you to respond to points made by 
other witnesses.
    The first point made by Mr. Dinh, Mr. Dinh has a wonderful 
appreciation and understanding of American history, and we have 
a lot to learn from that understanding. One of the points that 
he made was that he felt that the right of the District to vote 
continued because it was formerly a part of the State of 
Maryland and the law continued to be in operation. Why is that 
not something you agree with?
    Mr. Turley. Well, the first problem with that argument, it 
has been rejected. It has been raised in cases like Adams. The 
Supreme Court has addressed that argument. It doesn't have any 
legal legs thus far every time it is brought up in court. This 
was a transitional period.
    Also, the point that you have this plenary authority over 
the District, I have to make two points.
    First of all, to assist the Chairman on his earlier 
question, there is a case where the Congress failed in its use 
of plenary authority. I know because I was the counsel who 
challenged it, the Elizabeth Morgan act. In fact, I was drafted 
by one of the sponsors here, which was Representative Tom 
Davis. That case was found to be a bill of attainder, and the 
argument made by the Department of Justice was that the 
District has such huge plenary authority that it is really 
unchallengeable, and the court said that that is not true.
    Also, I want to emphasize that when Professor Dinh says we 
are not doing anything with States, we just look at section 2, 
not section 8. There is a problem with that. Section 8 is the 
section that defines who votes in Congress. Section 2 in the 
District clause says that you have the authority within the 
District, and the Supreme Court has emphasized that you have 
the authority that is equivalent to what a State can do within 
its borders. This isn't something within the District. You are 
changing the structure of the voting mechanism of Congress.
    Mr. Smith. Okay. Thank you, Mr. Turley.
    Let me go to the point made by Mr. Bress a while ago that 
he did not feel that giving Utah an at-large district was a 
violation of one man, one vote. You disagree with that. Why?
    Mr. Turley. Well, in my last testimony on this issue, I 
addressed the one person, one vote. It is also in my testimony 
today.
    The reason is that you have Utah residents who will now be 
voting on two representatives, one at large and one for their 
immediate district. Under Westbury, I believe that that raises 
serious questions. The Supreme Court has shown great skepticism 
about at-large districts. The United States Congress has taken 
the position against at-large districts because they are very 
abusive.
    Now, it is true that the Supreme Court has not yet applied 
Westbury and its principles to an interstate conflict where you 
have one State saying, hold it, Utah residents now have two 
representatives. But the Supreme Court has said that it doesn't 
see any reason why it would not apply to an interstate issue.
    Mr. Smith. Okay. Thank you, Mr. Turley.
    Mr. Spiva, let me address my next question to you, and it 
is this, that if we really want to give D.C. residents the 
right to vote for Members of Congress and even Senators, why 
would we not support a way that is considered to be not 
constitutionally suspect, a way that has broad support and a 
way that, in a practical manner of speaking, would be far more 
likely to be enacted, and that is the return of the District of 
Columbia to the State of Maryland with the exception perhaps of 
the Capitol and the Mall grounds?
    That seems logical. The Congress has already ceded back the 
part of the District that belonged to Virginia. It seems 
logical to follow that up with ceding back the part of the 
District that once belonged to Maryland. That would also have 
the benefit of not only giving the residents of D.C. a vote in 
the House but a vote in the Senate as well. Why not support 
that? I just honestly don't understand.
    Mr. Spiva. Well, the only politically viable option on the 
table at present, Congressman Smith, is this option. There is 
great resistance from--I don't know if there have been polls 
taken recently, but the polls taken in the mid-1990's and later 
in Maryland and in the District--to doing that. And, of course, 
you know, you would have to get Maryland's permission to 
permit--to do that. So I think there is actually a pretty high 
political hurdle to getting that done.
    I agree with you that it could also be done by simple 
legislation, and so you wouldn't have the constitutional 
amendment hurdle of having to go through the State 
legislatures, but it is still a pretty high political hurdle.
    Mr. Smith. It would be a hurdle, but I don't think it would 
be as high as either trying to pass a constitutional amendment 
or trying to find this piece of legislation constitutional, 
which I also think is a high hurdle.
    I just think that for individuals who want the vote for 
D.C., and I respect your sincerity, that approach should also 
be pursued with just as much vigor as you are pursuing this 
legislation.
    Thank you for your comments and thank you, Mr. Chairman.
    Mr. Conyers. Thank you very much.
    We now turn to the Chairman of the Subcommittee on the 
Constitution, Jerry Nadler of New York.
    Mr. Nadler. Thank you, Mr. Chairman.
    I want to start by commending you for moving this 
legislation so expeditiously. The injustice that the people of 
the District have suffered is real, and the time for action has 
long passed.
    It is a tribute to our colleague, the gentlewoman from the 
District, that she has managed to achieve so much. Every one of 
us knows how hard it is sometimes just to advocate for our 
communities, even with a vote in the House and two Senators. 
Our colleague's test is infinitely more difficult, but she has 
handled it with skill and intelligence, relying on the force of 
reason and moral persuasion.
    It would be hard for anyone to argue that this cause is 
anything other than unjust. We are talking about a very modest 
request, a single vote of the House. That citizens of the 
District have been denied even that much for so many years is a 
blot on our national honor, and it raises a real question mark 
about our expectations for the world that we are the messengers 
of democracy.
    Ultimately, a court will have to decide the constitutional 
questions we are debating here today. There is a great deal of 
scholarship arguing in favor of opposing this legislation, but 
there are also some scholarly voices we have heard today and on 
other occasions arguing the contrary. I would hope that even if 
people are uncertain about this legislation, if the District 
could have a vote, its citizens should at the very least get 
their day in court. I don't think that is asking too much.
    This is an unusual moment in our history, because the Utah 
situation brushes aside the usual partisan roadblocks to the 
enfranchisement of the District's citizens. It is a sad 
commentary in our Nation that only by arranging this trade can 
Congress be persuaded to act. Nonetheless, the opportunity is 
here.
    I appreciate the testimony, which has been informative. I 
will not ask the witnesses to hash over their arguments again, 
but I just want to make sure we are all on the same page on 
some threshold issues.
    Leaving aside any concerns that you may have about the 
legislation's method of doing so, do any of the witnesses 
believe there is any moral argument to be made against giving 
the citizens of the District a vote in the House? Obviously 
not.
    Do any of the witnesses believe that the citizens--or that 
the residents, I should say, of the District of Columbia are 
not citizens of the United States? Obviously not.
    Do any of you believe that it was the intent of the Framers 
to deprive the citizens of the District of citizenship rights 
equal to those of all other citizens of the United States? And, 
if so, what rights other than having voting representation in 
Congress do you think are constitutionally denied to these 
citizens, if any?
    Anyone?
    Mr. Turley. Well, on that one, I think I get off the train. 
Besides the voting issue that you point out, there are material 
differences between citizens. But I take your point that the 
core constitutional rights are the same between citizens. But 
they are subject to the whim of Congress, ultimately, as to 
their affairs.
    Mr. Nadler. Wait a minute. Some of the core constitutional 
rights that we normally assume people have are subject to the 
will of Congress?
    Mr. Turley. No, no. I am saying I agree with you in terms 
of the core constitutional rights, that they are citizens of 
the United States, they have the full benefits of that. But 
that does not include voting, and all I am saying is that their 
status is materially different in other respects.
    Mr. Nadler. It would not include diversity jurisdiction if 
Congress didn't choose to extend it to them?
    Mr. Turley. That is correct, yes.
    Mr. Nadler. Anything else?
    Mr. Turley. If we go to some of those other issues like 
diversity jurisdiction, the courts have made some exceptions, 
but nothing on this order.
    Mr. Nadler. Professor Dinh, would you comment on the 
question, please?
    Mr. Dinh. Yeah. I don't think it is just a matter of 
diversity jurisdiction--I don't think it is a matter of just 
diversity jurisdiction, but, as I noted before, sixth amendment 
rights, 11th amendment immunity, the right to regulate 
interstate commerce, the treaty clause and a whole host of 
other constitutional references to the rights of citizens of 
several States have been upheld by the court as pertinent to 
residents of the District as well. As Mr. Bress has so 
comprehensively opined, there is indeed no contrary judicial 
opinion at any level with respect to that.
    I think that Mr. Turley has conflated the arguments that 
have been previously made in court with respect to an inherent 
right of District residents to vote, as opposed to the right of 
authority of Congress to legislate and give this vote. The 
opinions rejecting the right of District residents who vote as 
residents of Maryland or Virginia were rejected as part of that 
claim. It was never rejected as part of the claim that Congress 
in the periods of 1790 to 1800 had constitutional authority to 
recognize those persons' right to vote, which is the relevant 
issue before this legislation.
    Mr. Nadler. Thank you.
    Mr. Bress.
    Mr. Bress. Thank you. I just wanted to note for this 
purpose that among the individual rights that we discussed is 
the right not to be subject to a bill of attainder. Professor 
Turley has mentioned that as one that Congress can't overrule 
using the District clause, and I would certainly agree with 
that. The District residents have the same right not to be 
subject to that as anyone.
    Mr. Nadler. Ex post facto was other violations of the Bill 
of Rights.
    Mr. Bress. Precisely. In fact, Justice Jackson wrote in his 
plurality opinion that Congress can't pass a law treating the 
District as a State where it would invade fundamental freedoms, 
and I would put that down in precisely that category.
    Mr. Nadler. I see my time has expired, so thank you.
    Mr. Conyers. I thank you very much.
    We now turn to the former distinguished Chairman of this 
Committee, James Sensenbrenner of Wisconsin.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    Let me start off by making a statement. I am concerned that 
an attempt to grant the representative from the District of 
Columbia the right to vote in Congress by statute is 
unconstitutional, and to ignore the constitutional problems--
that doing it this way I think is sticking one's head in the 
sand and not conceding the point that this is, I would say, a 
50/50 issue.
    I would point out that, traditionally, this Committee and 
the Congress have expanded the franchise through constitutional 
amendment rather than through statute. Of the 27 amendments to 
the Constitution, six of them have expanded the franchise by 
amendment: 15th, 17th, 19th, 23rd, 24th and 26th. Indeed, 30 
years ago, this Committee decided that a constitutional 
amendment was necessary and proposed an amendment and sent it 
out to the States for ratification, and only 16 States ratified 
the amendment, and 38 were necessary. So the constitutional 
amendment to grant District residents the right to voting 
rights in Congress has tried and failed.
    I am willing to give this type of legislation a chance to 
be tested in the courts with an expedited review clause similar 
to the clause that was appended in the McCain-Feingold campaign 
finance reform bill so that we can find out once and for all 
whether it is constitutional for Congress to legislate in this 
area.
    However, I am greatly disturbed at the decision that has 
been made by the sponsors of this legislation to give Utah an 
at-large seat, rather than to have the citizens of Utah elect 
four representatives by district. The legislation does give the 
right of citizens of Utah something that is denied to every 
other State, and that is the right to vote for two 
representatives, whereas the citizens of all of the other 
States can only vote for one.
    Most of the people in this room know that I have been a 
leader in passing the Voting Rights Act extensions both last 
year and 1982, and one of the things that the Voting Rights Act 
and its extensions have done is to prevent the dilution of 
minority voting clout through the creation of at-large 
districts.
    While neither the statute nor the Supreme Court have said 
that mixed at-large and district elections are per se 
unconstitutional or a violation of the Voting Rights Act, that 
issue has never been litigated, and I think that the Court 
would rule that way if the question phrased that way would come 
on up to the Court.
    Whether it is the law in the Constitution or not, I think 
at-large elections and district elections mixed are bad policy 
because they do dilute minority voting rights and their clout; 
and I am afraid that if a bill that consists of giving the 
citizens of Utah the right to vote for two representatives, as 
is currently the case, gets up to the Court you will start 
seeing jurisdictions that are covered by the Voting Rights Act 
use an affirmative finding of constitutionality as precedent to 
go back to the bad old days.
    Having said that, you know, let me say that if there is 
this mixed representation for Utah, you have lost my support 
for this legislation.
    [11:15 a.m.]
    Mr. Sensenbrenner. Because of the concern that I have, not 
on the D.C. issue but on the entire issue of the Voting Rights 
Act, do all four of you think this is an appropriate public 
policy concern? Starting with you, Mr. Dinh.
    Mr. Dinh. Yes, sir. I do.
    Mr. Spiva. I think your concern regarding at-large seats is 
valid. I am a big fan of the Voting Rights Act of 1965. I think 
this is very different, though, where you have an interstate 
difference.
    Mr. Sensenbrenner. I am talking about policy. I am not 
talking about the law or the Constitution. Good policy or bad 
policy?
    Mr. Spiva. I think, under the circumstances, this actually 
makes good policy and is distinguishable from the other 
situation.
    Mr. Turley. I believe you are actually correct on the 
policy issue, and there is a subordinate policy as well. On 
either side of this equation, D.C. or Utah, Congress would be 
abandoning, at least for now, the 435 limit; and I have to say 
that, as a policy matter, that is crossing the Rubicon. You 
have done that before when new States were coming into the 
Union, but it has been a restraining principle for Members, and 
it has avoided a lot of mischief. Once you cross that Rubicon, 
once you start allowing at-large districts be added by Congress 
and Federal enclaves to give votes, I think you will find 
yourself on a slippery slope.
    Mr. Sensenbrenner. Mr. Bress.
    Mr. Bress. I think the addition of permanent at-large 
seats, to me, would raise significant policy issues. I think 
having a seat be elected at large for an interim period of 
time, which this Congress has done many times before and which 
is still in the U.S. statutes, does not offend me in any 
significant way.
    Mr. Conyers. Thank you very much.
    With the permission of senior Members of the Committee, the 
Chair is going to recognize the gentleman from Tennessee, Mr. 
Cohen, for 5 minutes.
    Mr. Cohen. Thank you, Mr. Chairman and senior Members of 
the Committee. I hope I don't take 5 minutes.
    Mr. Turley and other members of the panel, I was curious. 
When the Constitution was drawn and they limited representation 
to the States, did we have territories at the time?
    Mr. Turley. Yes.
    Mr. Cohen. And we also have the District. Are there 
distinctions in the Constitution or maybe in this clause, in 
article I, section 2--do you think there were distinctions in 
mind about territories in the District or the District was 
dealt with differently in article I, section 8, than the 
territories were in article IV? Could there be some kind of 
difference in the way the perspectives were? They didn't say 
people shall not have a representative if you live in the 
District or if you live in the territories. They just mention 
States.
    Mr. Turley. I guess there are two answers to that, sir. One 
is that the Supreme Court has actually said the jurisdiction 
over territories and the District, while they are in separate 
clauses, are fungible in many respects. That is, they often 
refer to territories in the District in that sense.
    But when this was put into the Constitution, the reason 
there is no express reference to the District is because a 
minority among the ratification delegates objected and wanted 
language put in. People like Alexander Hamilton wanted to have 
language in there to guarantee that residents could have a role 
in Congress. They lost.
    There were amendments proposed along those lines in North 
Carolina.
    So this is not a case where nobody thought about it. There 
was debate. Some people thought it was appalling. And right 
after we had the Federal enclave established, not soon 
thereafter, a retrocession movement began in Virginia, and this 
was the issue in that retrocession debate, and the District 
residents were also part of that debate and asked if they 
wanted to retrocede. Virginia retroceded. The District's 
residents decided not to; and, in fact, the Supreme Court has 
said that--it has used references to the relinquishing of this 
particular right, because it was debated and it was raised not 
just at ratification but also later in the retrocession 
debates.
    And, ultimately, when D.C. got its government through the 
work of Lyndon Johnson, he did it by defining the District as a 
Federal agency. That is how Walter Washington was first put in 
as mayor, is that he treated the District much like the 
Department of Defense, where he had the ability to do that.
    Mr. Cohen. Thank you, sir.
    Mr. Spiva, was there any vote taken on prohibiting the 
District of Columbia from having representation?
    Mr. Spiva. Not that I am aware, but I would defer to either 
Professor Dinh or Mr. Bress, who are the true constitutional 
scholars.
    Mr. Cohen. Do you know if there was a specific vote on 
that? Somebody proposed a proposal that somebody should not 
have a representative?
    Mr. Dinh. No, sir. Not either in the Constitutional 
Convention nor either in the Act of 1801. It was simply by 
omission that there was no right to vote.
    But the key part there was a vote in 1790 with the 
Acceptance Act by Congress which acceded to the conditions of 
Virginia and Maryland that all of the laws, including the 
voting rights of their prior citizens and would-be citizens of 
the District, to have the vote during the 1790 and 1800 period 
until such time as Congress passed alternative laws. And when 
Congress passed alternative laws, it was simply omitted.
    Mr. Cohen. Do you have anything to add?
    Mr. Bress. I know it is true that Alexander Hamilton 
offered at one point language that would have given the 
District the vote, but there is no record of any debate on 
that, and I don't know precisely where that language went 
from--where it went from his pen.
    Mr. Conyers. We now recognize the distinguished gentleman 
from North Carolina, Mr. Howard Coble.
    Mr. Coble. Thank you, Mr. Chairman. Good to have you all 
with us.
    Mr. Turley, my folks spoke about Utah. When will Utah 
receive an additional representative, and is that in any way 
dependent upon the District of Columbia receiving a 
representative?
    Mr. Turley. First of all, let my say that I feel that Utah 
is justifiably aggrieved. I was surprised at the rationale for 
denying Utah the seat at the last round. But they would have to 
wait for a new census and division of districts, and presumably 
they would get a district at that point.
    But I have to say that I would be very surprised if the 
people of Utah ever see this seat. I think there are close 
constitutional questions. I don't think this bill is one of 
them.
    I think that this bill will either be defeated in fast 
order or it will very well be enjoined; and, in many ways, you 
would want it enjoined. Because if it is not enjoined, in our 
challenge to the Elizabeth Morgan Act, that went on for years. 
What happens if this goes on for years? What happens if it 
follows the same trajectory that we had in that case? We got it 
struck down after years. What happens if you have close votes? 
What happens about the Presidential elections if Utah exercises 
its electoral delegate that it gets?
    Mr. Coble. Thank you, sir.
    Mr. Dinh, much has been discussed here today about 
statehood. Again, my friend from Wisconsin mentioned the 
constitutional amendment that failed, but that was almost three 
decades ago. I can see where we would be reluctant to revisit 
that if it were a half a decade ago. But wouldn't it be more 
efficient to proceed along that courts, i.e., a constitutional 
amendment conferring statehood, rather than establishing a new 
preference?
    Mr. Dinh. Thank you very much.
    I think that, on the question of statehood, you can only 
achieve that through a constitutional amendment, because the 
question of State is defined by the Constitution. However, as I 
have said before, the Court has consistently recognized the 
right of Congress and the authority of Congress to give the 
District the rights pertinent to States even though it is not 
considered a State. So this is a much more limited piece of 
legislation which I think is within the range of options that 
Congress has in order to deal with the similar problem.
    Mr. Coble. Let me put this question to Mr. Spiva to add to 
Mr. Bress.
    What is the reasoning or the rationale for supporting the 
addition of one Representative in the House and turning a blind 
eye to the Senate?
    Mr. Spiva. I don't turn a blind eye to the Senate. My 
organization is committed to full representation for the people 
of the District of Columbia. This is a first step; and, if we 
get this, we are going to continue to work to get 
representation in the Senate.
    The one thing I would disagree with my colleague, Professor 
Dinh, with some trepidation, is this body could actually make 
the District of Columbia a State without a constitutional 
amendment. You could do that through legislation. You could 
admit us as a State and simply keep the Federal enclave as it 
is.
    Mr. Coble. Thank you.
    Mr. Bress.
    Mr. Bress. I don't have very much to add. I do believe that 
the decision really is a political one, as opposed to a 
constitutional question.
    Mr. Coble. Let me conclude. I still have more time.
    Professor, let me revisit you. What are some of the 
unintended consequences, if any, of creating a sole 
representative for the District of Columbia?
    Mr. Turley. There are a number that I lay out. One of the 
most important is that a lot of the things can change in our 
system, but the Framers and particularly James Madison was very 
firm on the structuring principles that hold the system 
together.
    You know, all of the branches are considered equal, but it 
is a bit of an overexaggeration. I think Congress is the heart 
of Madisonian democracy. It is where everything happened. It is 
enormously important for the stability of the country, and 
Madison saw that.
    So, in structuring it, this language as to who votes in 
Congress is enormously important. But once you cross that 
Rubicon, once you start fiddling with that structural language, 
then I think you will find that this is going to be a Faustian 
bargain, and some future majority is going to use the authority 
that you are now embracing, and particularly when you are 
lifting the 435 limit, it is an invitation to mischief.
    Mr. Coble. Before that red light illuminates and the 
Chairman comes after me, I yield back my time.
    Mr. Conyers. You had so much time left.
    I am pleased now to recognize the distinguished gentlewoman 
from Houston, Texas, Sheila Jackson Lee.
    Ms. Jackson Lee. Mr. Chairman, it is an honor to be here. I 
feel almost a sense of history and certainly a recognition of 
the moment, the returning of this room and the decisions that 
are made, to the years of the 1960's and the 1964 Civil Rights 
Act and 1965 Voting Rights Act and many other historical 
opportunities of providing equality and justice.
    I respect all of the presenters, but I do want to reflect, 
as I hold the Constitution, on the uniqueness of Washington, 
D.C., the specialness of America represented by a congresswoman 
who, in her early legal life, represented segregationists and 
their right to free speech only in America, and I thank 
Congresswoman Eleanor Holmes Norton for that kind of history; 
and a young man, who is a mayor, who comes of Jamaican heritage 
but yet loves America, is an American and now is able to 
represent, I know he would claim, the finest city in America. 
And that is very special.
    But the finest people in America who for years have--for 
decades, for centuries now--have, if you will, obligated 
themselves to the flag of the United States, shed their blood 
in many of their wars and continue to do so.
    So I want to pose a question to Mr. Dinh, because I am very 
curious about the constitutional underpinnings of this 
legislation. I think that this Committee has a duty to the 
Constitution, and I am cognizant of Professor Turley, who we 
respect, citing, of course, the provision under article I, 
section 2, about the representation being from the people of 
several States.
    But I also reflect upon, Mr. Dinh, I think, your argument. 
So when I ask the question would you counter your argument or 
your reference to, I believe, is it section 8, and a paragraph 
within section 8, to make all laws, this Congress, which shall 
be necessary and proper for carrying into execution the 
foregoing powers and all of the powers vested by this 
Constitution and the government of the United States or in the 
department or office thereof--if that is not the exact frame of 
reference that you utilize, then, please, if you would, 
juxtapose the language of several States to your constitutional 
argument and add in that could Congress treat the District as 
if it were a State for purposes of representation in the 
Senate.
    I guess I want the larger commentary on this question of 
the House before we certainly have immediate response to that.
    Mr. Bress, if you would explain why a Utah at-large 
district does not violate the one man, one vote; and I am 
trying to issue my questions quickly so the Chairman and his 
gavel--and Mr. Spiva, would you simply tell us how it feels--I 
will get to you last--to have soldiers on the battlefield that 
have lost their lives and yet not have the constitutional right 
to have representation?
    I know Mr. Turley will be able to comment on if the 
Tidewater case indicated that one decision in reaffirming what 
we are trying to do here today. Why do you think the Supreme 
Court is wrong?
    Mr. Dinh, if you will go ahead.
    Mr. Dinh. Thank you very much.
    Of course, the necessary and proper clause was interpreted 
by the Court in McCullough v. Maryland very broadly as it 
relates to the power of Congress, in that case to create the 
national bank; and the Court validated the creation of the 
national bank, even though that had been discussed previously.
    But even as I do agree with you, that the message and 
proper clause does add something to the analysis, especially if 
one goes as broad as the court has interpreted in McCullough v. 
Maryland, but I would caution in the following: I don't think 
it is necessary, because the District clause under article I, 
section 8, stands differently from other clauses in article I, 
section 8, because there is no countervailing space limitation.
    So that is why the Court has said that article I, section 
8, which delineates the power of Congress as it relates to the 
competing powers of State legislators, the District clause then 
alone--because here you have no competing State legislature, 
and that is why the court says the power of Congress here is 
whole, is plenary, is majestic in scope, and explicitly is all 
of the powers of government.
    So you are right to point to the countervailing. The only 
countervailing argument is article I, section 2, which limits a 
representative apportionment to the people of several States. 
Here I think it is a weighty textural argument, but so is the 
language in article III for the diversity clause jurisdiction, 
language of amendment 11 for immunity, the sixth amendment. The 
Court has consistently--and as Mr. Bress has opined, no court 
has held to the contrary that Congress has the power to treat 
the District as if it were a State for these purposes.
    I would not very lightly counsel this Committee or this 
Congress to take a leap of faith with the Constitution. I hope 
you know me better than that. I think the degree of confidence 
that comes with me before you recommending this legislation is 
not coming from my own textural structure and historical 
reading of the Constitution, even though they are consistent 
but also on an unending line to the cases and none to the 
contrary as articulated by the courts of this country.
    Ms. Jackson Lee. Mr. Chairman, if Mr. Bress--could you--do 
you remember the one question?
    Mr. Bress. I would love to.
    There are two points I would like to make. One is that 
there is an interstate and an intrastate issue here. Certainly 
from an intrastate standpoint, adding an at-large seat to Utah 
wouldn't dilute anybody's vote in Utah versus adding another 
single District representative. Because everyone would have the 
same weight. Everyone would vote for single District 
representative, and everyone would vote at large.
    You have the intrastate problem, which has been used here. 
People in Utah would be able to vote twice. But the question 
the Supreme Court has addressed in Westbury v. Sanders, another 
one of the one-vote cases, it is not how many times you get to 
vote. The question is what is the weight of your voting power.
    So let us take two examples. You have a State that has four 
single-Member districts and another State that has four people 
elected at large. Now in the first State, everyone votes just 
once for a single representative, and the other States 
everybody votes four times. But the difference is, in the one 
State, you have got a whole interest in one representative and 
in the other State you have got four fractionalized interests. 
But the math works out the same. The people in both States have 
the exact same weight to their vote, and that is what the 
Constitution is concerned with.
    The point that had been raised earlier that at-large voting 
has run into other problems, it has. It has run into problems 
with regards to its effect, its impacts on minority voters. 
That is a wholly separate issue, and it has nothing to do with 
one man, one vote.
    Mr. Conyers. We are out of time. Sorry, Mr. Turley.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Conyers. I recognize the gentleman from Virginia, Mr. 
Goodlatte. He has been a Chairman of Committees and is now 
still Ranking Member on other Committees of the Congress.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Turley, would you like to respond to the comments made 
by Mr. Dinh in response to the last question asked by the 
gentlelady from Texas?
    Mr. Turley. First of all, we obviously have a fundamentally 
different view of what the Supreme Court has said and certainly 
what the Constitution says on this question.
    Putting aside the fact that the Framers defined who would 
vote in Congress and the fact that the issue of whether the 
District would be included in that language came up--there were 
votes, by the way, in ratification conventions where amendments 
were offered, including in places like North Carolina. They 
were defeated. There was outrage among many people, not just 
Alexander Hamilton, about this disenfranchisement of the 
citizens of the District; and that debate continued through 
retrocession. So this is not some afterthought, that it is 
simply not mentioned so we can pretty much read it in there.
    Also, what the Supreme Court has said--and, first of all, I 
want to say, with the Elizabeth Morgan Act, the United States 
did argue that its plenary authority trumped in that argument. 
They relied heavily on the District clause, and that is the 
reason the District of Columbia switched sides and joined us, 
is precisely because of the plenary arguments made on behalf of 
the United States Congress.
    But putting all of that aside, many of these cases cited do 
involve individual rights. Nobody has ever doubted that the 
residents of the District of Columbia are U.S. citizens and 
they cannot have those rights taken away. That includes, it 
turns out, the 2nd amendment in the recent case that was just 
decided by the D.C. Circuit. And in Parker v. District of 
Columbia, I will simply note that the District seems to be 
taking a different position in that case and was arguing that 
we shouldn't be considered a State for the purposes of that 
challenge.
    Mr. Goodlatte. Thank you.
    Mr. Dinh, what constitutional principle allows the 
representation in one Chamber of the Congress but not in the 
other?
    Mr. Dinh. That is a great question, Mr. Goodlatte. As I 
noted in a footnote in my written testimony, my analysis of the 
bill is limited to its provision, and so I did not have 
occasion to opine conclusively whether Congress has the same 
power to grant a one Senator or two Senators. But I do know 
that the language of article I, section 3, which relates to 
Senators, and the 17th amendment, which relates to the 
Senators, while in some respects similar to article I, section 
2, relating to the House of Representatives, does differ in one 
important respect: It says that each State shall have two 
Senators, as opposed to the Representatives shall be elected by 
the people of several States.
    Mr. Goodlatte. Let me get to article I, section 2, then. 
Because I can't square that with your analysis at all. It says, 
the House of Representatives shall be composed of Members 
chosen every second year by the people of the several States, 
but then in the next paragraph going on to state, the 
qualification States, no person shall be a representative who 
shall not have attained the age of 25 years and have been 7 
years a citizen of the United States and who shall not, when 
elected, be an inhabitant of that State in which he shall be 
chosen.
    Now is the District of Columbia a State?
    Mr. Dinh. No, sir.
    Mr. Goodlatte. How do you square your analysis with the 
principle definition of qualification to be a member of this 
body, which is article I, section 2, not the other articles in 
the Constitution which you have, in my opinion, to reach the 
analysis that you have brought to us today.
    Mr. Dinh. With all due respect, I do not think I have 
twisted it, and if there is any twisting, it is the Supreme 
Court.
    Mr. Goodlatte. Square it with the paragraph 2 of section 2.
    Mr. Dinh. There is no question that the District is not a 
State for the purposes of this or other provisions of the 
Constitution. But the question that we are faced here is 
whether Congress's power under article I, section 8, Clause 17, 
extends to giving the citizens of the District the same rights 
as if they were citizens of the States. And here I think the 
same kind of argument----
    Mr. Goodlatte. That argument completely conflicts with the 
definition of who qualifies to be a member of this body.
    Mr. Turley.
    Mr. Turley. I will simply note that the language that is 
cited in every State having two Senators, there is also a 
State--it says that each State shall have at least one 
representative, and so the House has the same language 
referring to the House.
    Mr. Goodlatte. Let me ask a question of Mr. Spiva.
    You cited a poll that the overwhelming majority of 
Americans support giving voting rights to representation of the 
District of Columbia; and there are many people here, including 
Mr. Turley and myself and others, who would describe to you 
alternative ways to accomplish that. The clearest way to do 
that would be to have a constitutional amendment. Why not go 
the route that is absolutely clear, absolutely protects the 
rights of the citizens not only to have the right for a 
representative to vote in the House but also to have it clear 
that what the Congress giveth, the Congress can't take away? 
Because it is pretty clear if you follow Mr. Dinh's analysis 
you will have the right of the Congress to take this away in 
the future. You will have the right of the Congress to take 
away other rights that have been extended by this authority 
that Mr. Dinh identifies. Why not go the constitutional 
amendment route, given the fact that public opinion clearly has 
changed since 1979 when it was last tried?
    Mr. Spiva. Well, it is unnecessary, even under the 
statehood scenario, Congressman. This body, as it has done in 
admitting every other State, could admit the District, other 
than what would remain of the Mall and the Congress, as a 
State.
    Mr. Goodlatte. That is certainly one of the alternatives. 
We would certainly cede the land back to Maryland with a 
constitutional enclave carved out for the Federal buildings 
where the Supreme Court and the Capitol and the White House are 
located. Those would both be superior alternatives. But the 
cleanest alternative would be to enshrine the right of the 
people of the District of Columbia to vote in the United States 
Constitution in clear, unequivocal language. Why not do that?
    Mr. Spiva. Because it is unnecessary, and particularly if 
you were trying to achieve statehood you could do that with 
simple legislation. So there is no reason to go through the 
route of the constitutional amendment, which is the most 
difficult politically and cumbersome to achieve.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Conyers. The Chair recognizes the gentleman from 
Georgia, Mr. Henry Johnson, Jr.
    Mr. Johnson. Thank you, Mr. Chairman.
    Being from Georgia, I am quite proud of that fact. But I 
was actually born and raised right here in Washington, D.C., 
and went to the public schools, and so I am particularly proud 
to be here this moment when we are considering this 
legislation.
    I must say that in the two and a half months that I have 
been here I have seen and heard no more eloquent a spokesperson 
for the rights of people who live here in Washington, D.C., 
than Representative Eleanor Holmes Norton, who has kept this 
matter at the forefront every moment that I have been here.
    One of my memories as a child growing up in northeast 
Washington, D.C., is every--I used to wonder why did my daddy 
wait until the last minute on April 15th, 11:15 p.m. At night, 
and with all of these papers scattered all over the kitchen 
table and he was filling out his--he and my mother's Federal 
income taxes. And he would leave out and be able to make it 
down to the post office quicker than I ever thought you could 
make it from our house. He would have to come all the way 
downtown right across from the Capitol, not far from where he 
used to work as a Federal employee for the Bureau of Prisons. 
Number three man in that bureau, and my mother was a 
schoolteacher. But yet I didn't realize that they were second-
class citizens until much later, because even with all that 
they attained and all of the responsibilities that they had, 
they still could not exercise the right to vote.
    And I, as a young man, if I had dreamed of ever serving in 
the hallowed halls of this fine institution, I would not have 
had the opportunity to do so because of where I was born in the 
current state of the law which, in my humble opinion, cries out 
for change for quite a few years in the past as well as right 
now.
    So I would like to ask, there being no prohibition in the 
United States Constitution of residents of the District of 
Columbia to vote, then it stands to reason that perhaps it was 
an oversight that the drawers, the makers of the Constitution 
failed to take care of their residents in the District of 
Columbia. Perhaps that might have been the case.
    I would like to get each one of you all to comment on that.
    I would also like to know if there is any authority, any 
express authority in the Constitution requiring citizens of the 
District of Columbia to pay taxes; and I think I would like to 
get the answer to that question first from Mr. Turley.
    Mr. Turley. The courts have said, indeed, that the Congress 
can require that residents pay taxes.
    Mr. Johnson. District of Columbia residents? What in the 
Constitution would require District of Columbia residents to 
pay Federal taxes?
    Mr. Turley. Well, the District clause gives that plenary 
authority over taxation, and in D.C. v. Carter the Court said 
that the power of Congress is very simple under the clause. It 
says it can exercise--this is a quote--the powers which a State 
may exercise over its affairs.
    Mr. Johnson. Let me ask you this question. It has been long 
held, I believe, that the citizens of the District of Columbia 
are required to pay taxes, and they are treated like any other 
citizen for that purpose. And there being nothing in the 
Constitution that would prevent residents of Washington, D.C., 
from having the right to vote and they having had the right to 
vote prior to the acceptance of the secession of the lands, why 
is it not possible--why is it legally irresponsible for this 
Committee to not tender legislation granting that right to vote 
to the citizens here which can be taken to the U.S. Supreme 
Court and settled on that level? What makes it so 
premeditated--such a premeditated unconstitutional act as you 
talked about?
    Mr. Turley. Well, my response would be, first of all, an 
omission of language is not a statement of authority. And if 
that were the case, then any failure to mention another entity 
could be read into a provision that is ambiguous.
    But I don't believe that the House provision is ambiguous. 
And it was not an omission. We keep on--it is good--it would be 
good if it was an omission, but it wasn't. It was debated at 
the time, and it has been debated ever since, that this is a 
high price for residents to pay.
    So, for that reason, no, I can't agree that the omission 
can be treated as an oversight, because it wasn't. And, also, 
in terms of the other States, because the District gives you 
the right to really be the government like a State would be, 
all of those other powers belonging to the State in the 10th 
amendment belong to them. But you are changing a relationship 
with the other States. You are affecting their rights. It is 
not an intrastate issue.
    Mr. Johnson. There is nothing in the Constitution that 
prescribes how many Members there can be in the House of 
Representatives, is there?
    Mr. Turley. As long as they are from the several States.
    Mr. Johnson. There is no prohibition against the United 
States Congress in the Constitution expanding its membership in 
the House, nor is there anything that would prevent the 
Congress from exercising that majestic power under section 8, I 
believe.
    Mr. Turley. But under your analysis you could give Puerto 
Rico four to six seats. They have got 4 million people there. 
We would find ourselves on the ability----
    Mr. Johnson. Isn't that a matter of constitutional 
interpretation?
    Mr. Conyers. The gentleman's time has expired.
    Mr. Johnson. Thank you, sir.
    Mr. Conyers. You are welcome.
    Dan Lungren, former Attorney General for the State of 
California, you are recognized.
    Mr. Lungren. Thank you very much. I appreciate that.
    I have some difficulty in dealing with some of these 
arguments because I was an English major, and I look at words 
and attach meanings to words. And when something says that the 
Congress shall be made up of representatives from the States, 
that usually is my first inquiry, what do they mean there?
    So then I go to the question of what is the Constitution. 
As I understand it, the Constitution was a compact among the 
States; and, as I look, I recall that to come under the compact 
it has to be ratified by the States. And there is nothing else 
that suggests that somebody else ratifies it, whether it is the 
District of Columbia or somebody else. Maybe that is why the 
Congress is made up of representatives of the States. It 
doesn't appear to be entirely illogical to me.
    But let me just ask you, first of all, Mr. Dinh, the 
arguments you have made here today for representation in the 
House are equally valid for representation in the Senate, 
correct?
    Mr. Dinh. Not necessarily, sir. As I answered with Mr. 
Goodlatte, I reserve judgment on that because of the difference 
in text between article I, section 3.
    Mr. Lungren. Okay. So that is more specific than saying 
that the House of Representatives shall be made up of those 
from the States.
    Mr. Dinh. Yes. There is other language in that that I have 
not considered.
    Mr. Lungren. Mr. Spiva, would you say that the arguments 
that you make here and the ones that are supporting this are 
equally valid for Senate representation?
    Mr. Spiva. Like Professor Dinh, I have not done a full 
constitutional analysis to see the constitutional----
    Mr. Lungren. If we pass this legislation, you wouldn't use 
that as an argument against an effort to try to get Senate 
representation, would you?
    Mr. Spiva. No, sir.
    Mr. Lungren. You would probably use it for, wouldn't you.
    Mr. Spiva. I wouldn't take a position on it today.
    Mr. Lungren. You will come back, I am sure.
    Mr. Bress.
    Mr. Bress. I would take the same position on this that 
Professor Dinh has taken in the sense that I take these duties 
seriously, And I am not going to----
    Mr. Lungren. I understand that.
    Why would not these arguments be equally valid with respect 
to Puerto Rico, the Virgin Islands, American Samoa and Guam, 
Mr. Spiva?
    Mr. Spiva. I don't know that I can give you a full answer 
on that. I know the territories are covered by different 
provisions in the Constitution.
    Mr. Lungren. I know you made the argument with reference to 
the paragons of human rights in Europe saying that we are 
violating human rights by not extending full voting rights to 
the people in D.C. Couldn't that be made to Puerto Rico, the 
Virgin Islands, American Samoa and Guam?
    Mr. Spiva. It could, with one difference, Congressman. We 
pay Federal taxes.
    Mr. Lungren. You made the argument about serving in the 
military. We have people from Puerto Rico, the Virgin Islands, 
American Samoa and Guam. You used that as part of your 
argument. So isn't that also the case?
    Mr. Spiva. That is true, Congress. I am not here today 
trying to diminish anybody else's potential rights. I am just 
saying that we pay taxes.
    Mr. Lungren. That is a major, significant difference.
    If, in fact, the argument that you make, Professor Dinh, 
sort of answers the question, why was it necessary for us to 
pass a constitutional amendment to give the people in the 
District of Columbia the right to vote for President? Could 
that have been done merely by legislation?
    Mr. Dinh. As I indicated in a major portion of my analysis, 
I think the 23rd amendment was necessary because of the 
particular provisions of article I that deal with that and, in 
particular, the Supreme Court opinion that immediately preceded 
the 1978 constitutional amendment. I do not think that the 
passage of the 23rd amendment precludes a congressional 
enactment of this type or is dispositive of it.
    Mr. Lungren. Why was it necessary in that amendment to say 
that the District would be entitled if it were a State. If it 
were a State, is that just unnecessary, superfluous language?
    Mr. Dinh. There was--the Supreme Court decision to which I 
refer--and the name escapes me, although it has been famously 
characterized as the Tower of Babel because there were so many 
opinions with so many different provisions. But one of the 
prevailing justifications for that was Justice Black's opinion 
for Congress's power under section 5 of the 14th amendment 
that, because that power is not available to Congress with 
respect to the District, I think the 23rd amendment was 
necessary.
    Again, I would refer you to my formal written statement.
    Mr. Lungren. I have taken a look at that.
    Thank you very much, Mr. Chairman, for this.
    Mr. Conyers. Thank you very much.
    The bells indicate we have been summoned to the floor for 
several votes, and we will resume as soon as those votes have 
been taken.
    The Committee stands in recess.
    [Recess.]
    [12:50 p.m.]
    Mr. Conyers. Thank you so much for your patience. I 
apologize for the votes. And the Committee will come to order. 
And the Chair recognizes the gentleman from Virginia, Randy 
Forbes.
    Mr. Forbes. Thank you, Mr. Chairman, and thank you for 
holding this hearing. And to all the witnesses, we appreciate 
your being with us and your patience through the votes.
    I have been interested in listening to all the debate, and 
I just want to capsulize some of it.
    Mr. Spiva, first of all, thank you for your presentation, 
and I want to go back to a couple of things that I heard Mr. 
Lungren raise to you. Outside of the Federal income tax 
situation, you listed serving on Federal juries, that the 
people in D.C. were good people, that they were veterans and 
service members who had fought and are fighting for our 
country, that there was a moral outrage that they didn't have 
the right to vote is a denial of human rights, and they were 
Americans.
    And again, I think his question, of those attributes, all 
of those would apply equally to Guam or Puerto Rico, for 
example, if we were to list the attributes of each of those. Is 
that a fair statement?
    Mr. Spiva. I think it is, Congressman.
    Mr. Forbes. So if I were to ask all the good people that 
you had here, and I know a lot of them had to leave but they 
were here before, if I would ask them to equally stand up in 
support of Puerto Rico and Guam based on those same attributes, 
they would all stand up for them as well, wouldn't they?
    Mr. Spiva. Congressman, I am sure if the people of Puerto 
Rico, for example, clearly wanted to have the right to vote--I 
know there have been several polls in Puerto Rico and there 
have been mixed results, I believe. I can't speak for everybody 
here, but a threat to justice here is a threat to justice 
everywhere.
    Mr. Forbes. But the attributes at least would be applicable 
to the residents of Guam residents, to Puerto Rico, with equal 
applicability; would that be a fair statement?
    Mr. Spiva. I think it is, Congressman.
    Mr. Forbes. The Federal tax situation, I certainly 
understand and appreciate the representation. Sometimes we need 
to be careful at what we ask for. I was just looking at what 
the States were getting back for the Federal dollars that they 
were paying. Maybe we would all be better off without 
representation, because the highest State gets back $2 for 
every $1 they are putting in, and the District of Columbia is 
getting back $6.64 for each dollar they are representing.
    But Mr. Dinh, I would like to ask you a question, too, if I 
could. I have tried to listen to the options that were here. 
And first of all, as I understood your testimony, you said 
there was no constitutional requirement or mandate that is 
inherent to give this representation to the District of 
Columbia; was that a fair understanding of your testimony?
    Mr. Dinh. Yes. I think the Court of Appeals for the 
District of Columbia addressed this in Adams v. Clinton, that 
there is no constitutional right that is enforceable in the 
court for such representation, but it leaves open the question 
whether Congress can grant such a right.
    Mr. Forbes. So based on the testimony--and I heard some 
witnesses ask about the concern that they had with the people 
of the District of Columbia not having a constitutional right 
to vote--isn't it true that unless we were to pass a 
constitutional amendment or unless we were to cede property 
back to Maryland or declare D.C. a State, unless we use one of 
those three options, there is nothing that this Committee or 
the House of Representatives or Congress as a whole could do to 
give voters in D.C. the constitutional right, mandate to 
representation?
    Mr. Dinh. The legislation here would give the right of D.C. 
residents to have representation in this House. It is not 
constitutional in nature. I think it is constitutional and 
permissible as a matter of congressional authority.
    Mr. Forbes. Right. But we heard people say constitutional 
rights. So just to make sure we are comparing apples to apples 
here, there is nothing we can do here today short of those 
three options. Those are the only things that would give them 
constitutionally protected guaranteed vote in D.C.
    Mr. Dinh. Statutory right rather than constitutional right.
    Mr. Forbes. Mr. Spiva, as I understood in your testimony, 
you said that you would continue to work for full 
representation in the Senate, and you indicated that polls 
across the country were overwhelmingly in favor. But I just 
wanted to clarify because I heard some different things. They 
are overwhelmingly in favor of giving representation rights, 
but apparently the polls in Maryland, I take it, are 
overwhelmingly against having the property go back to Maryland. 
Would that be fair?
    Mr. Spiva. That would be fair, Congressman. It is a 
different poll, and I should hasten to add that I think the 
polls done on statehood have gone the other way. People believe 
that we should have the right to vote for representation, but 
they don't necessarily believe in statehood.
    Mr. Forbes. So would it be fair for me to interpret from 
that testimony--but you correct me if I am wrong--that the 
polls across the country be overwhelmingly against statehood, 
overwhelmingly against ceding the property back to Maryland. 
Fair?
    Mr. Spiva. I don't know that there has been a national 
poll----
    Mr. Forbes. But that would be politically difficult.
    Mr. Forbes. Because of the polls in Maryland and because of 
the polls in the District.
    Mr. Forbes. So the constitutional options to give a 
constitutional right to D.C. representation, the polling seems 
to be pretty strong against that.
    Mr. Spiva. I don't know if I follow the question. But I 
think that the option that is on the table----
    Mr. Forbes. I don't want to stop you, except my time is 
running. As I asked Mr. Dinh, the only three things we can 
really do to give constitutionally protected rights to 
representation in D.C. would be to cede the property back to 
Maryland, have a constitutional amendment, or determine 
statehood or declare statehood.
    Mr. Spiva. To enshrine them in the Constitution, I think 
that is probably right.
    Mr. Forbes. Based on at least your understanding today of 
the facts you have, the polls would probably be against any of 
those three options?
    Mr. Spiva. I wouldn't go that far, Congressman.
    Mr. Forbes. So you don't know?
    Mr. Spiva. I don't think there has been polling done on 
that particular question.
    Mr. Forbes. But you think there was polling on the 
statehood issue?
    Mr. Spiva. Yes.
    Mr. Forbes. And that polling would be negative?
    Mr. Spiva. It is a different poll than the poll I alluded 
to in my testimony. But, yes, that is the case.
    Mr. Forbes. And the bill that is before us today, Mr. 
Turley has suggested, has constitutional concerns. I know there 
is an argument and difference between our witnesses. But you 
would agree with me that I think you said that that was the 
politically most feasible option for you at this particular 
point in time. Was that a fair representation?
    Mr. Spiva. This bill? Yes.
    Mr. Forbes. But if that is so, then it would be fair to say 
that since that would not be constitutionally mandated, that it 
would be a legislative option that happened to be the most 
politically feasible option at the time. That would also be 
something that could be changed based on the change in 
political climate at any time.
    Mr. Spiva. What is that that could be changed?
    Mr. Forbes. The legislation that could be passed here. In 
other words, the rights that could be given could be pulled 
back, taken back, changed, modified at any time on a political 
basis, as political majorities changed or as voting patterns 
changed or whatever.
    Mr. Spiva. I believe the answer to your question is yes, 
Congressman. But there is one exception that might apply and I 
have not looked at this. Sometimes when States or the Federal 
Government create certain rights, even though they didn't have 
to to begin with, due process prevents them from taking them 
away under certain circumstances, and I haven't looked at 
whether that would apply in this situation. But I think the 
answer to your question is yes.
    Mr. Forbes. Let me take your supposition that you just made 
that that certain right would be there. You heard Mr. Turley 
earlier suggest that that was case law that indicated that we 
should treat the territories and D.C. basically the same. Mr. 
Turley, was that a fair representation?
    Mr. Turley. Yeah. The courts have said that if the 
jurisdiction that Congress actually has over territories is 
analogous to the District and vice versa.
    Mr. Forbes. Okay. Mr. Spiva, if in fact we pass the 
legislation and it became an inherent right, as you just 
suggested, and I realize you haven't totally thought that out 
and researched, would there be any equal protection arguments 
that Guam or Puerto Rico could raise at that particular point 
in time that would suggest that we have given an inherent right 
now that was rising up to a constitutional protection to voters 
in D.C. and that they should have that same right?
    Mr. Spiva. I doubt it, Congressman. First of all, I would 
not necessarily agree with the premise. There is a different 
provision in the Constitution that applies to the territories, 
and I haven't looked at that.
    Mr. Forbes. But you haven't looked at the case that Mr. 
Turley has----
    Mr. Spiva. I am familiar with the Alexander v. Daley case, 
and the name of the companion case is escaping me. But those 
cases clearly said this is up to Congress, which is why we are 
here today.
    Mr. Forbes. You don't think the territories and D.C., the 
courts said they should be treated similarly?
    Mr. Spiva. That I think is true under certain 
circumstances, but I do not know whether that is true under all 
circumstances because they are covered by----
    Mr. Forbes. You don't think there would be any equal 
protection argument?
    Mr. Spiva. I do not.
    Mr. Forbes. Mr. Chairman, thank you for the time.
    Mr. Conyers. You are more than welcome. We didn't have the 
clock on. I knew you would agree on what is about 5 minutes.
    Mr. Forbes. I hope I was there, close.
    Mr. Conyers. Members of the Committee, we have three 
guests, shadow Senators and Representatives, and I would like 
senior Senator Paul Strauss to stand, junior Senator Mike brown 
to stand, and shadow Representative Mike Panetta to stand. 
Welcome, gentlemen.
    And now we turn to Chris Cannon from the much debated State 
of Utah.
    Mr. Cannon. And the State of Utah doesn't even appear in 
the legislation, but we are looking forward to being the next 
in line for a seat, which--I want to welcome the panelists, 
especially my dear friend Mr. Turley.
    Let me start with you, Mr. Turley. I appreciate the line of 
questioning Mr. Forbes just went through. It was actually quite 
interesting. Analogous doesn't mean the same, and the 
difference is largely how we legislate them. Let me just make 
that point.
    And Mr. Dinh talked about what is constitutionally 
permissible and what is constitutionally right. And so I ask 
this question with some trepidation, knowing what I think your 
answer is going to be, but asking you first so the others can 
respond as well. It seems to me that if you grant that this is 
a question that is unclear, then there is some likelihood that 
the courts will defer to Congress' decision, given the 
complexity of the problem. In your mind, is there a possibility 
that this is unclear? Are you absolutely clear that this is an 
unconstitutional action?
    Mr. Turley. Well, I would hope that over the course of a 
few dozen appearances that I have a reputation for not gilding 
the lily, not exaggerating on authority. But I have to say that 
there are close questions of constitutional law. I don't 
consider this to be one of them. It is--with due respect to my 
colleagues here, I truly believe this is a dead letter as soon 
as it arrives to the court. I don't think that there is 
ambiguity here and I think that the review would be quick and 
decisive.
    Mr. Cannon. I am certain that a group of people in Utah are 
going to take your words to heart when they file a lawsuit on 
this. But if we go down the panel starting with you Mr. Dinh, 
is there--clearly your testimony is that we can legislate here, 
and therefore I assume you would suggest that there would be 
some deference to Congress. Would you care to elaborate on 
that?
    Mr. Dinh. I think you are right that the Court would defer 
to Congress, especially as it is doing here, consider very 
weighty constitutional issues in a very deliberate manner and 
consider contrary testimony and opinions. And also the weight 
of the evidence with respect to the Court's deference to the 
Congress legislating under article 1, section 8, clause 17, the 
District clause is much greater than in other instances in the 
Constitution. I am not as confident in my analysis as Mr. 
Turley is in his contrary analysis, but I think that may be a 
matter of personality rather than constitutional law.
    Mr. Cannon. I think it is absolutely clear that Mr. Turley 
has a great personality, but also I would--let me just say that 
we have been together on many occasions. You have testified 
here many times, and the keenness of your intellect has never 
been challenged nor the clarity of your discussion, Mr. Turley.
    Mr. Turley. Thank you, sir.
    Mr. Cannon. Could we just go down the panel, then, and have 
other comments on this?
    Mr. Spiva. Thank you, Congressman. I think that although 
reasonable people can debate the constitutionality and disagree 
with the constitutionality of the bill, I think the weight of 
the authority would support a finding of constitutionality. And 
one thing I should have said in my opening testimony is that 25 
legal scholars have actually joined Professor Dinh in signing a 
letter which I would like to submit for the record, Mr. 
Chairman.
    Mr. Conyers. Without objection.
    Mr. Cannon. Thank you. And Mr. Bress?
    Mr. Bress. I would agree that, as I have said before, there 
is a question here, and unlike, I guess, Professor Turley, I 
don't purport to say that there is a slam-dunk in my direction. 
I just think it is the better reading of the authority. And 
when I say that, I acknowledge, as has been discussed here all 
morning, that the Constitution refers to States, and I would 
not argue that the District is in fact a State.
    I think the precedents are quite clear otherwise. But I 
guess what I would say is that the cases that we have discussed 
so far that the Supreme Court has addressed, in particular the 
full faith and credit clause case and the case dealing with the 
dormant commerce clause as well as Hepburn, which deals with 
diversity, all also dealt with constitutional provisions that 
used the word State. And yet all found that for their purposes, 
and particularly when Congress was legislating under the 
District clause, that the District could be considered a State 
nonetheless under those clauses. So I do think that it is 
oversimplifying the debate to look at the word ``State'' and 
think you have got the answer, and I think you need to delve 
into the cases.
    Mr. Cannon. It does occur to the mind when you read the 
phrase that talks about States that that is clear, but if you 
read the whole paragraph, it is less clear. And if you look at 
the history, it seems to me that it is much less clear. So with 
all due respect, we are going to go down as disagreeing on 
this, Mr. Turley.
    And in the environment of what I have said and intend to 
continue to say, is that in the environment where it is clearly 
unclear or at least where so many experts can disagree that 
Congress has the right and, I think here, the obligation to 
allow a significant chunk of people to have representation in 
the body that taxes.
    Thank you, Mr. Chairman. I yield back.
    Mr. Conyers. Thank you very much. The distinguished 
gentleman from Cincinnati, Ohio, if he is prepared to take his 
questions.
    Mr. Chabot. Thank you, Mr. Chairman. I have no questions at 
this time. I had the honor to Chair the Subcommittee hearing in 
the last Congress on this, and I had all my questions answered 
at that time. But thank you.
    Mr. Conyers. You are welcome very much, Mr. Chabot.
    I am now pleased to call on the gentleman from Iowa, Mr. 
Steve King, for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. Appreciate the privilege 
to be recognized, and the opportunity to look into this a 
little bit deeper.
    And as I have listened to this testimony, and I direct my 
first question to Mr. Dinh, and I missed a little of this Q&A 
in the voting process, but as I recall from your testimony, in 
the original delivery of your testimony as I would boil that 
down, it would boil down to a precedent that was established in 
1790 until about 1800, 207 to 217 years ago, thereabouts, that 
the residents of the District were allowed to vote as residents 
of the States of Maryland and Virginia because Congress had 
granted that authority and they had--well, I will call it a 
consensual agreement. And so that precedent then would be the 
core of your argument that that precedent would carry forward 
and should be applied today with regard to representation for 
D.C. and the Congress?
    Mr. Dinh. In addition to my arguments regarding article 1, 
section 8, obviously, I do think that that precedent is very 
illuminating, especially since it was done in the first 
Congress. And as we know, great weight is given, as it should, 
by courts to the actions of the first Congress.
    Mr. King. Mr. Dinh, I point out also that that appears to 
be in the history of this--I know only from your testimony and 
the discussion here, that appears to be a precedent that was 
established by a majority of the House and the Senate, signed 
by the President, but one that was untested and unchallenged. 
And so it wouldn't carry the weight, even if a Supreme Court 
decision might go back so far as that period of time.
    The fact that there was an agreement that was mutually 
agreed to by the House and the Senate and the President, is 
there any example in history where that kind of an agreement, 
untested constitutionally, would have constitutional precedent 
with regard to any future issue?
    Mr. Dinh. No. You are absolutely correct and that is a very 
keen observation. This is not binding precedent on the Supreme 
Court, as I said before, even though the weight of the 
authority is in the Court in favor of mine and Mr. Bress' 
constitutional interpretation, there is no binding precedent. 
And I think that is precisely why the actions of the first 
Congress is illuminating but not binding. You are absolutely 
right.
    Mr. King. And I thank you.
    And Mr. Spiva, in your testimony, you talked about and 
started your testimony, as I recall, about the brave and 
patriotic Americans who gave their lives fighting in the Middle 
East for all of our freedom, which we all revere and respect 
and appreciate that sacrifice.
    My question to you would be, were they fighting to uphold 
the Constitution as soldiers or marines for the United States 
military?
    Mr. Spiva. Certainly, Congressman.
    Mr. King. And then wouldn't that be the binding principle 
for all men and women in arms to uphold the Constitution?
    Mr. Spiva. Absolutely.
    Mr. King. And then shouldn't that be our binding principle 
here as well, since at least the Members of this Congress swear 
also to uphold the Constitution?
    Mr. Spiva. I certainly would agree with that, Congressman. 
And I think this bill is constitutional.
    Mr. King. You do. It seems as though in your response to 
Mr. Smith's questions about why you wouldn't go down the path 
of asking for D.C. statehood, let's see, that there was a 
response made--maybe I wrote it down--about you acknowledging 
the constitutional difficulty of this particular piece of 
legislation. I recall that concession or that point, and I 
can't exactly quote it back to you.
    Mr. Spiva. I am sorry. If I made such a concession, I 
certainly did not intend to. I think that reasonable minds can 
disagree about the constitutionality of this bill, but I think 
the clear weight of authority, I think the precedents that my 
colleagues have cited in terms of the diversity jurisdiction 
provision and the interpretation of that of the Tidewater case 
as well as with the 11th amendment, the taxation amendment, all 
of those hold in favor of finding that this also would be a 
constitutional exercise of this Committee and this Congress' 
authority.
    Mr. King. I did happen to find that response in my notes. 
So this may not be exactly verbatim, but it is close at least 
in its intent.
    On the question of the constitutionality--and your 
concession was to Mr. Smith when you said you wouldn't have to 
amend the Constitution if D.C. were ceded back to Maryland in 
reference to this legislation. So whether it was advertent or 
inadvertent, I think at least the implication was there. I 
don't want to belabor that point.
    Mr. Spiva. I don't want to see that as inconsistent, I 
guess, Congressman. You would not have to amend the 
Constitution to cede the District back to Maryland. You would 
need Maryland's permission.
    Mr. King. But the implication was you would have to if we 
adopted this legislation.
    Mr. Spiva. That was not the implication that I intended.
    Mr. King. Well, it was the one I drew, and I am willing to 
let the record stand and not challenge it in either way if that 
is all right with you.
    Mr. Spiva. I would disavow that if that----
    Mr. King. Disavow that. Okay. Then that disavow is in the 
record then. I am happy to concede that to you as well, because 
I don't want to try to lead anyone here. But my question then 
to you is: As I, as a Member of Congress, take an oath to the 
Constitution, that if I believe that a piece of legislation 
before me is unconstitutional, as Mr. Turley does, then would 
your advice to me be if I favored the policy but did not 
believe in the constitutionality of it, should I vote for the 
policy or vote for the Constitution?
    Mr. Spiva. Congressman, if you believe that it is clearly 
unconstitutional, that a provision is clearly unconstitutional, 
then I think you should follow your conscience and vote against 
it, even if you believe as a policy matter it is good. I think 
you then would have the obligation to use all of your 
legislative energies to find a solution that you did believe 
was constitutional.
    Mr. King. Thank you. And I will let the record show you are 
a good fellow who is always willing to do business.
    Mr. Spiva. Thank you.
    Mr. Conyers. Thank you very much. The Chair recognizes the 
gentleman from California, Darrell Issa.
    Mr. Issa. Thank you, Mr. Chairman. I might note that I am a 
cosponsor of this bill and voted for it in the last Congress. 
So I just wanted to get through a couple of things, though, 
because this bill may or may not become law. If it becomes law, 
it may or may not become enacted before 2010, or at all.
    So first of all, Professor Turley, if this thing were 
stayed by a series of legal challenges until 2010, do you agree 
that the Utah provision would be moot?
    Mr. Turley. You know, that is a wonderful question because 
when you look at the nonseverability clause, it refers to a 
finding that one provision is unenforceable, it is kind of a 
holding or judgment. If it is enjoined, one could certainly 
make the argument that that provision would not kick in. You 
could make an argument either way. It is not clear. If it 
doesn't kick in, then you are going to have a world of trouble.
    Mr. Issa. Okay. Because my time is short and my Chairman is 
specific on time, would we then be well advised to consider 
such amendments as would make it clear that if this does not 
become enacted by 2010, Utah would go away, because it will 
have gotten its additional seats, if appropriate, and the deal 
would still go forward if it is enacted before 2010 but, in 
fact, not made practically--you know, some portion of it not 
occurring--that we should take provisions to make sure that the 
rest of it would go forward, forgetting about your objections 
to the underlying bill? That would be your recommendation?
    Mr. Turley. I think you probably do have to tweak that 
provision. And also to look at the implications of an 
injunction.
    Mr. Issa. Okay. So I suggest that all of us will be looking 
at it in that term. I have already voted for this in Government 
Reform, but I am concerned that we not have the Utah compromise 
if this doesn't go into effect until after 2010, stop it from 
going into effect.
    But now let's assume for a moment this is overturned, 
because I am not going to have a brain trust like this for 
quite a while in front of me. And, Professor, because you are 
the dissenter here, I want to use you for a moment.
    If we, in fact, ceded back to Maryland, would we be able 
to, in your opinion, get an equivalent of the District of 
Columbia in all other ways; in other words, control over our 
own National Guard, control over other aspects such that the 
District of Columbia would continue to exist for purposes of 
the types of control that were deemed necessary by the Founding 
Fathers? Do you believe we would be able to achieve that while 
still having the people of the District become full citizens of 
Maryland again?
    Mr. Turley. Yes. Well, it is a terrific question, sir. 
Under the modified legislation plan that I suggested, I believe 
that you could create, with agreement with Maryland, a unique 
status for the District that would include many of these 
things. They would become part of the political entity of 
Maryland. The District of Columbia itself would become the true 
Federal seat of government. It would just be the Federal 
buildings themselves.
    Mr. Issa. I understand. I understand that alternative that 
we simply draw a small ellipse, so to speak. But assuming that 
we were to deal with this in its entirety, do you believe we 
could have our cake and eat it too? Cede back all of the land, 
have such compacts and provisions as would allow the major 
uniqueness of the District of Columbia to continue to exist?
    Mr. Turley. Yeah. Actually, it is not as difficult as it 
may seem because of the NIH case. There are various ways you 
can do this. You can keep a Federal footprint in the District, 
but it would be part of Maryland. If it is part of Maryland, 
they vote with Maryland. But also in terms of that type of 
retro session, I think an agreement can be worked out with 
Maryland to achieve all of those things.
    Mr. Issa. Okay. Following up then on that same line, 
assuming all of that for a moment--and this is again, assuming 
in the alternative to what I have already supported as a piece 
of legislation--do you believe we could do that with no 
constitutional requirement? We could do it purely 
legislatively, a normal vote by the House and the Senate and 
the signature of the President?
    Mr. Turley. I do. I always prefer constitutional amendments 
because they are clean, they are what the framers anticipated. 
But as I mentioned in my testimony, I think it is something you 
can do through legislation if you are talking retro session 
options.
    Mr. Issa. Okay. And because I have been unfair to the other 
three on this line of questioning, is there anyone that 
believes there is inaccuracy in any of those? Or would you all 
agree Utah--we should deal with Utah in case this doesn't 
become law before 2010? And two, do you believe that the 
answers that Professor Turley gave would be accurate in the 
alternative if we failed to prevail with the President's 
signature on this bill?
    Mr. Dinh. I agree with your comments regarding Utah. I have 
not looked at the limited or total retro session.
    Mr. Issa. Mr. Chairman, I understand my time is gone, so I 
would only ask that the rest of them be able to answer for the 
record.
    Mr. Conyers. That is an excellent idea. I thank you for it.
    We may be able to get in two, two more Members to ask 
questions. And let's try for it, starting with Tom Feeney of 
Florida. Would you begin? And then we will yield to Judge 
Gohmert.
    Mr. Feeney. Thank you very much, Mr. Chairman. We 
appreciate your panelists being patient. We will go off to 
vote, it looks like you will be able to go on to more pressing 
business.
    But this is a fascinating discussion. Professor Turley, you 
are awful optimistic about a quick and decisive decision from 
the Supreme Court on a slam-dunk constitutional issue. But much 
like I agree with your constitutional analysis, I don't have 
nearly the confidence. Courts and constitutional law scholars 
and politicians have engaged in discussions to get the right 
results in the past and, you know, Mr. Spiva, I was interested, 
cited as one of the reasons he thought it was a good political 
idea that we have got this overwhelming majority, not just 
national but international voices, expressing outrage that D.C. 
isn't included as the same rights that States have to be 
represented. And one of the citations that Mr. Spiva gave us, 
for example, was the United Nations Commission on Human Rights, 
led and joined by those great democracies and liberal bastions 
like Cuba, Libya, and then Syria.
    So it is sort of interesting that they are lecturing us on 
our constitutional principles. But regardless of whether the 
objection is constitutional or political, I am concerned about 
the rationale that Mr. Dinh and others have given us here, and 
they don't have an opinion with respect to whether their 
rationale would lead to the same conclusions with respect to 
Congress' power because, after all, if Congress has this 
unlimited power to delegate State status to a non-State with 
respect to a voting Member of Congress, is there anything that 
you can discern in their logic that would stop Congress from 
having the power to provide two Senators to D.C.?
    Mr. Turley. I must say I find it a little bit disconcerting 
that we are not going to get to this question and answer it to 
all of our satisfaction before we enact this legislation. This 
first report by Mr. Dinh was put out, I believe, in 2004. At 
some point we should probably get to the question as to whether 
what you are doing now could be used as a compelling ground for 
adding two Senators. And the distinction that Mr. Dinh made was 
this language about having two Senators for every State.
    But there is also in article 1 a reference that is 
virtually identical, saying each State shall have at least one 
Representative. If it is compelling as a barrier to adding 
Senators, one would say the virtual same language would be 
compelling to adding a Representative. I don't see any 
distinction that could be possibly drawn that would prevent 
that argument from being made.
    Mr. Feeney. And why would it have been necessary to pass 
the 23rd amendment with respect to giving D.C. status with 
respect to selecting the President? I mean, under the same 
constitutional theory that we have here, that Congress has the 
power to endow statehood status for purposes of congressional 
representation, why would it not be equally true that the 23rd 
amendment was unnecessary because Congress could have at any 
time endowed D.C. with the power to help select a President?
    Mr. Turley. Well, there is a great deal that seems in 
conflict once you start to tweak the meaning of States for the 
purposes of House voters. And as you know, the 23rd amendment 
has very clear language that it was necessary to treat the 
District as if it were a State. And if you also look back at 
the 1978 amendment, it was very clear as to Congress' view as 
to this authority. And this really is an effort to get what is 
a worthy end with an easier means. But there is nothing 
particularly easy about the constitutional process, and that is 
what the framers wanted.
    Mr. Feeney. The 23rd amendment also had to differentiate 
the way electors were chosen in D.C. Elsewhere they are chosen 
in a manner that the State legislatures determine. And, of 
course, it had to discern that same thing with respect to who 
is qualified to serve. And then--I guess I want to go on to Mr. 
Gohmert so that nobody has to come back, but I would ask this 
question, which is related, but not exactly on the subject 
matter.
    Reading the 12th and 23rd amendments together, what happens 
in the event that no Presidential candidate gets a majority of 
the Electoral College votes? Currently does D.C.--could they be 
the tiebreaker with the power of, say, the delegation of 
California or New York? Is that the----
    Mr. Turley. It gets very, very dicey on a number of grounds 
with this bill. The Utah electoral vote is a good example. What 
is clear is that litigation would likely continue. And I say it 
is going to be a dead letter, I don't mean litigation is going 
to be all done. I say that I believe it is going to be a very 
consistent response of the Court from the very beginning.
    And I will also note that my colleagues who say that I seem 
strangely confident, if you read their testimony, they say 
there is ample and pretty much uninterrupted authority for 
their positions as well.
    Mr. Conyers. I thank the gentleman. Let me get quickly to 
Judge Louie Gohmert of Texas, and excuse me for cutting you 
off.
    Mr. Turley. Oh, no, not at all.
    Mr. Gohmert. Thank you, Mr. Chairman. And I will do what is 
difficult for me, to be brief. But anyway, you know, we have 
heard a lot of talk about article 1, section 2, article 1, 
section 8. Of course section 3 deals with the Senate. But 2 
does say the House of Representatives shall be composed of 
Members chosen every second year by the people of the several 
States. And that is the concern. But does that mean what it 
says? Now, as I understand, those who believe that allowing 
D.C. to have a Representative not from a State, you are basing 
that authority on article 1, section 8; is that correct? If I 
could get you each to comment quickly.
    Mr. Dinh. Yes.
    Mr. Bress. Yes.
    Mr. Spiva. Yes.
    Mr. Gohmert. Okay. And obviously article 1, section 8 says 
that Congress shall have power--and then you get to the 
important part you are referring to--to exercise exclusive 
legislation in all cases whatsoever over such District, not 
exceeding 10 miles square, as may by secession of particular 
States and the acceptance of Congress, become the seat of the 
Government of the United States and to exercise like authority 
over all places purchased by the consent of the legislature of 
the State in which the same shall be, for the erection of 
forts, et cetera, and other needful buildings
    So it would seem if that is your constitutional basis for 
doing that, then the nearly 4 years I spent at Fort Benning, 
Georgia, even though I asked not to go there--boy, and I 
appreciate so much citizens in D.C. fighting for their country. 
Everybody at Fort Benning, everybody at military posts all over 
the United States do that. Since it says here ``and to exercise 
like authority over all places, like for the erection of a 
fort,'' it sounds like--and it includes buildings.
    Professor Turley, under that reasoning, wouldn't it make 
sense that I should be able to push for a Representative from 
the Pentagon and as well as from Fort Benning and other 
military posts that might like to have a Representative?
    Mr. Turley. Well, of course, Lyndon Johnson did treat the 
entire District as an agency under the same logic the 
Department of Defense could be given a Member of Congress.
    Mr. Gohmert. I would rather not use Johnson as a precedent.
    Mr. Turley. Well, I will simply point out in Paul v. The 
United States, the Supreme Court said quote, ``The power of 
Congress over Federal enclaves that comes within the scope of 
article 1, section 8, clause 17 is obviously the same as the 
power of Congress over the District of Columbia.'' and so while 
they are different clauses, the Supreme Court routinely refers 
to them together. And by the way, the recent D.C. Court of 
Appeals----
    Mr. Gohmert. Now, this is in the same clause. I mean unless 
you are distinguish--this is in the same--before the semicolon, 
this is the indented--this is all part of the same part 
referred to as the District.
    Mr. Turley. I also want to note on that issue that the D.C. 
Circuit in last week's decision on the 2nd amendment, while it 
was split, they were unified in how they treated the District, 
even though the District argued in that case they should not be 
treated as a State for purposes of the 2nd amendment. Both the 
majority and the dissenting judge pointed out that this is the 
clear authority, the clear difference between States and the 
District and territories.
    Mr. Gohmert. Well, just in closing, thank you all very much 
for your insights. And it is a good point made by citizens of 
the District of Columbia. They do not actually get to elect a 
Representative and that is a valid point.
    But my understanding, one of the arguments that was made 
counter to that, that may have helped carry the day back when 
the original framers were going through this, was the fact that 
they felt that as Representatives and Senators came here from 
all over the country, this would be the only place in the 
entire United States where every Member of the House of 
Representatives and every Senator would have a vested interest 
in seeing that the sewers worked, that the streets were good--
and, nowadays, that a subway works. And I mean, I have been 
open to some bills on subway help here that I would not have 
been any other place, but we all work here. And many actually 
live here and close to making it a residence. So as I 
understand it, I haven't heard anybody mention that, but I 
understand that was one of the arguments back 200 years ago, 
that actually Washington has more of a vested interest in it by 
Representatives and Senators than any other city in the entire 
Nation.
    Mr. Conyers. Thank you, Judge.
    Mr. Gohmert. Thank you very much.
    Mr. Conyers. Let me recognize for unanimous consent 
requests Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman. I would ask the 
report of this Committee, February 16, 1978, chaired by 
Chairman Rodino and submitted by Subcommittee Chairman Don 
Edwards, the majority view----
    Mr. Conyers. Without objection, the document is included in 
the record.
    [Note: The document referred to, Report No. 95-886, is not 
reprinted in this hearing but is on file with the Committee in 
the official hearing record.]
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Conyers. Ladies and gentlemen, thank you. As witnesses 
your contributions have been invaluable. We are going to go 
over them carefully. We received numerous statements, letters 
and reports. I ask unanimous consent to include in the record.
    I close with this observation: that in Westbury v. Sanders, 
the Supreme Court held that no right is more precious in a free 
country than that of having a voice in the election of those 
who make the laws under which, as good citizens, we must live. 
The democratic vision of our Nation's founders will, I think, 
be advanced by finally giving to the District of Columbia's 
residents congressional representation.
    And on that note, I adjourn the hearings and thank you 
again for your time and contribution.
    [Whereupon, at 1:30 p.m., the Committee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
                       Committee on the Judiciary




 Prepared Statement of the Honorable Steve Cohen, a Representative in 
  Congress from the State of Tennessee, and Member, Committee on the 
                               Judiciary



Survey entitled, ``U.S. Public Opinion on DC Voting Rights,'' conducted 
               for DC Vote by KRC Research, January 2005




       Report of the Inter-American Commission on Human Rights, 
                    Organization of American States




``Democracy, Human Rights and Humanitarian Questions,'' Chapter III of 
  the Washington, DC Declaration of the Organization for Security and 
  Cooperation in Europe (OSCE) Parliamentary Assembly and Resolutions 
                Adopted at the Fourteenth Annual Session



          Report by the United Nations Human Rights Committee



         Letter from Twenty-Five Legal Scholars Supporting the 
                 Constitutionality of DC Voting Rights



Congressional Research Service (CRS) Memo, Subject: Constitionality of 
      Congress Creating an At-large Seat for a Member of Congress



         Letter from the Leadership Conference on Civil Rights



                 Letter from the National Urban League



                 Letter from the League of Women Voters



                Letter from People for the American Way



 Letter from the United Food & Commercial Workers International Union 
                                 (UFCW)



            Letter from the American Jewish Committee (AJC)



           Letter from the NATIONAL ASSOCIATION OF REALTORS



   Article published in Roll Call entitled ``Too Clever by Half: the 
   Unconstitutional D.C. Voting Rights Bill,'' January 25, 2007, by 
                            Jonathan Turley



     Article published in Roll Call entitled ``Democracy for D.C.: 
   Allow Statehod, Not `Voting Rights' '' January 25, 2007, by Scott 
                                McLarty



Article published in Roll Call entitled ``CRS Doubts Constitutionality 
       of D.C. Bill,'' February 13, 2007, by Elizabeth Brotherton



Article published in The National Review entitled ``Hammering to Fit,'' 
                September 18, 2006, by Matthew J. Franck



Article published in The Washington Post entitled ``Statehood: The Best 
               Path for D.C.,'' Sunday, February 11, 2007



   Article published in Roll Call entitled ``Full Representation for 
 Washington--the Constitutional Way,'' January 25, 2007, by Rep. Dana 
                              Rohrabacher



    CRS Report for Congress entitled ``District of Columbia Voting 
  Representation in Congress: An Analysis of Legislative Proposals,'' 
Updated January 30, 2007, Eugene Boyd, Analyst, Government and Finance 
                                Division


 CRS Report for Congress entitled ``The Constitutionality of Awarding 
   the Delegate for the District of Columbia a Vote in the House of 
  Representatives or the Committee of the Whole,'' January 24, 2007, 
     Kenneth R. Thomas, Legislative Attorney, American Law Division




                      Letter from DC for Democracy



                     Letter from Democracy for Utah



             Letter from the American Bar Association (ABA)



      Additional Material submitted by Richard P. Bress, Partner, 
                         Latham & Watkins, LLP



                                 
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