[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.govFOR
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
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
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