[Senate Hearing 110-575]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-575
 
                   EQUAL REPRESENTATION IN CONGRESS:
                       PROVIDING VOTING RIGHTS TO
                        THE DISTRICT OF COLUMBIA

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

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 15, 2007

                               __________

       Available via http://www.gpoaccess.gov/congress/index.html

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs


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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
            Deborah P. Parkinson, Professional Staff Member
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
        Amy L. Hall, Minority Director for Governmental Affairs
                  Trina Driessnack Tyrer, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lieberman............................................     1
    Senator Collins..............................................     3
    Senator Landrieu.............................................    15
    Senator McCaskill............................................    17
Prepared statement:
    Senator Akaka................................................    32

                               WITNESSES
                         Tuesday, May 15, 2007

Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah.......     5
Hon. Tom Davis, a Representative in Congress from the State of 
  Virginia.......................................................     8
Hon. Eleanor Holmes Norton, a Delegate in Congress from the 
  District of Columbia...........................................    10
Hon. Adrian M. Fenty, Mayor, District of Columbia................    15
Hon. Jack Kemp, Founder and Chairman, Kemp Partners..............    18
Wade Henderson, President and Chief Executive Officer, Leadership 
  Conference on Civil Rights.....................................    21
Viet D. Dinh, Professor of Law, Georgetown University Law Center.    25
Jonathan R. Turley, Shapiro Professor of Public Interest Law, The 
  George Washington University Law School........................    28

                     Alphabetical List of Witnesses

Davis, Hon. Tom:
    Testimony....................................................     8
    Prepared statement...........................................    38
Dinh, Viet D.:
    Testimony....................................................    25
    Prepared statement...........................................    58
Fenty, Hon. Adrian M.:
    Testimony....................................................    15
    Prepared statement...........................................    45
Hatch, Hon. Orrin G.:
    Testimony....................................................     5
    Prepared statement...........................................    35
Henderson, Wade:
    Testimony....................................................    21
    Prepared statement...........................................    52
Kemp, Hon. Jack:
    Testimony....................................................    18
    Prepared statement...........................................    48
Norton, Hon. Eleanor Holmes:
    Testimony....................................................    10
    Prepared statement...........................................    41
Turley, Jonathan R.:
    Testimony....................................................    28
    Prepared statement...........................................    78

                                APPENDIX

Copy of S. 1257..................................................   139
CRS Report for Congress, ``District of Columbia Voting 
  Representation in Congress: An Analysis of Legislative 
  Proposals,'' April 23, 2007, submitted for the Record by 
  Senator Coburn.................................................   151
CRS Report for Congress, ``The Constitutionality of Awarding the 
  Delegate for the District of Columbia a Vote in the House of 
  Representatives or the Committee of the Whole,'' May 7, 2007, 
  submitted for the Record by Senator Coburn.....................   180
Prepared statements submitted for the Record from:
John P. Elwood, Deputy Assistant Attorney General, Office of 
  Legal Counsel, U.S. Department of Justice, submitted for the 
  Record by Senator Coburn.......................................   203
    Paul Strauss, District of Columbia Shadow Senator............   210
    John Forster, Committee for the Capital City.................   217
    DC Affairs Section of the DC Bar.............................   219
    DC for Democracy.............................................   224
    Robert J. Kabel, Chairman, District of Columbia Republican 
      Committee..................................................   226
    DC Vote, 25 Legal Scholars Support Constitutionality of DC 
      Voting Rights..............................................   228
    Democrary for Utah...........................................   230
    Jon M. Huntsman, Jr., Utah Governor..........................   232
    Andrew T. Hyman, Ware, Fressola, Van Der Sluys & Adolphson 
      LLP........................................................   235

Questions and responses for the Record from:
    Mr. Henderson................................................   237
    Mr. Dinh.....................................................   239
    Mr. Turley...................................................   248


                   EQUAL REPRESENTATION IN CONGRESS:
                        PROVIDING VOTING RIGHTS
                      TO THE DISTRICT OF COLUMBIA

                              ----------                              


                         TUESDAY, MAY 15, 2007

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
Room SD-342, Dirksen Senate Office Building, Hon. Joseph I. 
Lieberman, Chairman of the Committee, presiding.
    Present: Senators Lieberman, Akaka, Pryor, Landrieu, 
McCaskill, Collins, and Warner.

            OPENING STATEMENT OF CHAIRMAN LIEBERMAN

    Chairman Lieberman. The hearing will come to order. We 
welcome everybody here this morning. I note that Congressman 
Davis is here, and I would gather that our other colleagues are 
on the way.
    This is an important hearing on a very important matter. To 
me, what we are gathered here to do today is to mend a tear in 
the fabric of our American democracy, and I am talking, of 
course, about the fact that the citizens of the District of 
Columbia lack voting representation in the Congress of the 
United States.
    In fact, America is the only democracy in the world that 
denies the citizens of its capital city democracy's most 
essential right, which is representation in the national 
legislature. That is an embarrassment.
    The people of this city, in my opinion, have waited too 
long for that right. I believe that the tide is changing this 
year and that this is the year we can and will give the 
citizens of the District of Columbia the civic entitlement that 
every other Federal taxpaying American citizen enjoys, no 
matter where he or she lives.
    I want to thank, in particular, my good friends Senator 
Orrin Hatch and Senator Bob Bennett for increasing the odds for 
success this year with their cosponsorship of this effort. And 
as if on cue, as I mentioned his name, Senator Hatch enters the 
room. I would like you to think that we had rehearsed this, but 
we had not.
    Senator Hatch, I was just thanking you for cosponsoring 
this measure and increasing the possibilities of success in 
this effort.
    Earlier this month, Senator Hatch and I and Senator Bennett 
introduced S. 1257,\1\ which would provide the District of 
Columbia with a voting representative in the House and also 
give the State of Utah the fourth congressional seat it 
deserves, based on the 2000 census.
---------------------------------------------------------------------------
    \1\ Copy of S. 1257 appears in the Appendix on page 139.
---------------------------------------------------------------------------
    I also want to thank the two people in the House, 
colleagues and friends, without whose leadership we would not 
be here today with the hopefulness that we have in our hearts, 
and that is, DC Delegate Eleanor Holmes Norton and Congressman 
Tom Davis, who worked together so cooperatively and 
productively to pass a similar bill in the House in April by a 
vote of 241-177.
    Notwithstanding the remarkable, effective service of 
Congresswoman Norton, the citizens of the District of Columbia 
deserve more than a non-voting delegate in the House. They 
deserve a representative who can vote not just in Committee, as 
Delegate Norton now can, but also can vote on the House floor, 
which she cannot. I would bet--as a matter of fact, not only 
bet, but I have seen polls to suggest that most Americans would 
be shocked to hear that the residents of the District and their 
delegate cannot vote on the House of Representatives' floor.
    I also want to thank and welcome Mayor Fenty, whose first 
few months in this job have been marked by a strong advocacy 
for voting rights in Congress for the people he serves. And no 
wonder. The people of the District of Columbia have been the 
target directly of terrorist attacks, and yet they have no 
voting power in the major questions that we decide here about 
how the Federal Government provides the residents of the 
District and all Americans homeland security. The people of the 
District have given their lives to protect our country in 
foreign wars but have no say in our foreign and defense policy, 
no actual voting say. They pay taxes, like every other 
American. In fact, they pay more taxes than most Americans. Per 
capita, District residents have the second highest Federal tax 
obligation. Yet they have no voting voice in how those taxes 
will be raised or how they will be spent.
    The District is also the only jurisdiction in the United 
States of America that must seek congressional approval--
through the appropriations process--before spending locally 
generated tax dollars. So when Congress fails to pass 
appropriations bills before the beginning of the fiscal year, 
the District's budget is essentially frozen. And yet here, too, 
the District has no actual voting representation or involvement 
in the appropriations process.
    Giving the residents of the District voting representation 
in the House is, therefore, to me the right and just thing to 
do. But I will add it is also the popular thing to do. A 2005 
poll by KRC Research found that 82 percent of the American 
people believe that it is time to end this bias against the 
District.
    So we have a great group of witnesses here. I do not want 
to waste a moment. I just want to say that this is the moment 
to act together to do something right and good for our country. 
The legislation introduced in both the House and the Senate is 
an expression of a fundamental American value of fairness and 
inclusivity, and I think it is also--has been in the House and 
will be in the Senate--an example of what we can do if we work 
together across party lines.
    Senator Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank you. Mr. Chairman, I know how 
strongly you feel about this issue. Your statement today was 
very eloquent, and I am very grateful that you have scheduled 
this hearing to hear testimony today on legislation to provide 
the District of Columbia with representation in the U.S. House 
of Representatives.
    I read a lot about this issue and have learned a great deal 
during the last month as I have focused on it, and it has a 
truly fascinating history. Recognition of the need for a 
national capital controlled solely by the national government 
predates our Constitution.
    In January 1783, before there was a fixed location for the 
national capital, the Continental Congress was meeting in 
Philadelphia. Revolutionary War veterans gathered outside, 
aggressively demanding their back pay. Congress sought 
protection from authorities in Pennsylvania and did not receive 
it, and as a result, Members of Congress actually fled the 
city. This incident helped form the view that future Congresses 
should be able to meet on neutral ground under Federal control, 
beholden to no State.
    When the Constitutional Convention of 1787 convened, its 
members took the same view as the Continental Congress on the 
need for Federal control over the seat of national government. 
And in the Federalist Papers, James Madison said that the point 
of ``complete [Federal] authority at the seat of government'' 
was to avoid depending for protection on the State in which it 
sat.
    Some speakers at the Constitutional Convention, including 
Alexander Hamilton, argued that the residents of the new 
Federal District ought to have Congressional representation. 
Unfortunately, no such provision was adopted.
    The initial impact was not nearly as significant back then 
as it is today. When the District officially became the capital 
in 1800, it had only 14,000 residents, many of whom lived in 
the section that was later returned to Virginia.
    But today, more than 200 years later, the District of 
Columbia is home to more than half a million American citizens. 
These citizens serve in the Armed Forces, pay Federal taxes, 
participate in and benefit from numerous Federal programs, and 
support a local government. Yet they cannot choose a 
Representative with full voting rights for the House that sits 
in their midst.
    A fundamental point in this issue is that the District is 
not a State. The Constitution describes the selection and 
residency of Members of the House of Representatives in terms 
of States. In 1998, the DC Circuit concluded that 
``Constitutional text, history, and judicial precedent bar us 
from accepting [the] contention that the District of Columbia 
may be considered a state for purposes of congressional 
representation.''
    A proposed structural remedy--a 1978 constitutional 
amendment--failed because, unfortunately, only 16 States 
ratified it before it expired.
    Without such an amendment, the Constitution does not 
expressly supply the remedy sought by many District residents.
    But I want to emphasize that this does not end the debate. 
The Constitution's ``District Clause'' gives the Congress 
``exclusive'' power to legislate with respect to the District. 
We can apply tax laws to the District, and we have. We can 
grant or withdraw powers of local government. We can send the 
District's sons and daughters to war. No State can assert 
legislative jurisdiction here. That is the meaning of 
exclusivity.
    Our legislative authority in the District, while exclusive, 
is not boundless. We are constrained by the language of the 
same Constitution that made the grant of exclusive legislative 
authority.
    If Congress can constitutionally pass legislation to grant 
the District a fully empowered Member of the House of 
Representatives, I will gladly support that measure.
    If, however, legislation granting the District a voting 
representative in Congress violates the Constitution, then it 
will fail as surely as if we attempted to suspend the right of 
free speech.
    So that is the question before this Committee. Can we 
constitutionally pass legislation creating a congressional seat 
for the residents of the District of Columbia? The 
Constitution, in my judgment, forecloses our legislating Senate 
representation for the District because it is, after all, not a 
State. But the question of House representation is far less 
clear-cut. It may well pass constitutional muster to provide a 
population-based House seat even though representation in the 
Senate would clearly fail to pass constitutional scrutiny.
    Our witnesses today will help us understand the 
constitutional ramifications of these questions.
    Let me close my opening remarks by making clear that I am 
sympathetic to the goal of providing representation in the 
House of Representatives for the District of Columbia. I 
enthusiastically support reaching that goal. That seems to me 
to be a matter of fundamental fairness. I look forward to 
listening to the experts today on how we can accomplish that 
goal within the confines of our Constitution.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you very much, Justice Collins.
    [Laughter.]
    Senator Collins. Now, you meant that very respectfully, 
right?
    Chairman Lieberman. I did. Actually, that is not a bad 
idea. But I thank you for a very learned statement, and I 
appreciate very much the work that you have done in preparing 
for the hearing. I think you set out one of the baseline issues 
very clearly, and I hope the witnesses today will help convince 
you. But I respect what you said, and I take it to be 
encouraging.
    I welcome Senator Pryor here as well this morning. Thanks 
for taking the time to be here.
    We have a great first panel, all elected officials. Unless 
they insist that we ask them questions, we are not going to ask 
them questions, and we will understand if their schedules 
require them to leave after they testify. But each of the four 
has played, is playing, and will continue to play a very 
important leadership role in righting this wrong, in my 
opinion.
    Senator Hatch, we have worked together on many things in 
the past, across party lines. You are a stand-up, straight-
shooter of a guy. You stepped out on this one and, I think, 
created a critical turning point in the historic effort to give 
residents of the District of Columbia voting representation in 
the House. So I cannot thank you enough, and I welcome you now 
to make an opening statement.

 TESTIMONY OF HON. ORRIN G. HATCH,\1\ A U.S. SENATOR FROM THE 
                         STATE OF UTAH

    Senator Hatch. Well, thank you so much, Mr. Chairman and 
Senator Collins. I appreciated both of your statements, and I 
appreciate the leadership you provide for us here in the Senate 
on this great Committee. You are both very dear friends, and I 
appreciate both of you.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Hatch appears in the Appendix 
on page 35.
---------------------------------------------------------------------------
    I appreciate the opportunity to advocate for legislation 
that would for the first time give voting representation in the 
House of Representatives to the residents of the District of 
Columbia and also a fourth congressional seat for my home State 
of Utah.
    As you may be aware, I have partnered with Chairman 
Lieberman in drafting the District of Columbia House Voting 
Rights Act of 2007, S. 1257. This legislation not only 
rectifies the District's undemocratic political status, but it 
gives my home State of Utah a long overdue fourth voting Member 
in the House of Representatives.
    During the 2000 Census, Utah missed receiving a fourth seat 
by only 857 people. Valid questions were raised about the 
methodology of that count, leading most in our State to believe 
that we were not treated very fairly. Since then, our 
population has only grown. In fact, the southern city of St. 
George, Utah, continues to be the fastest growing metro area in 
the entire Nation and was rated the top retirement community in 
the country. Some have suggested that I need to go there.
    [Laughter.]
    Chairman Lieberman. Not yet. We need you.
    Senator Hatch. I am also very impressed with my colleagues 
here at this table and the efforts that they have put forward 
in trying to resolve these very important problems. They are 
terrific people, and I just want to express my support for 
them. I am confident that our subsequent population growth in 
Utah makes clear that Utah deserves an additional House seat.
    During drafting of S. 1257, Chairman Lieberman and I worked 
to resolve what we felt were deficiencies in the House measure. 
I have both constitutional and policy concerns about that bill 
because it imposes an at-large seat upon Utah. In States with 
more than one seat in the House, Members are expected to 
represent insular constituencies. Under H.R. 1905, residents of 
one State would be represented by two House Members, while 
citizens in other States would only have one.
    In our constitutional system, States are responsible for 
elections, and Utah has chosen the approach it wants to take by 
redistricting. Now, I see no reason for Congress to undermine 
this and impose upon Utah a scheme it has not chosen for 
itself. Thus, in the proposed Senate legislation, I insisted 
that Utah be required to redistrict to provide for the new 
seat. As far as I can see, no one should have any objection to 
that. It will be done fairly.
    I believe that Utah's legislators deserve the freedom to 
determine their Representatives' districts without unjustified 
intrusion or mandate of the Federal Government.
    Now, this bill would also provide, as we all know, for the 
full House representation for District residents. District 
residents pay taxes. They vote in presidential elections. They 
serve in the military. Yet more than half a million Americans 
do not have a full voting representative in Congress. Eleanor 
Holmes Norton is a wonderful representative, but as you know, 
she is barred from voting under certain circumstances, and that 
is just plain not fair.
    Their elected Delegate, while subject to the same 
restrictions and regulations as other House Members, cannot 
vote in all matters relating to House business, and her 
participation can change as House rules and majorities change. 
This legislation would end such inconsistency.
    America's founders established that population would be 
represented in the House and that States would be represented 
equally in the Senate, and that equally in the Senate by equal 
suffrage is a very important concept. As a result, while the 
District's significant population justifies representation in 
the House, it must actually be a State for such equal 
representation in the Senate. And on that point, I agree with 
America's founders that the Nation's capital should not be one 
of the Nation's constituent States.
    Let me say just a word about the argument that granting the 
District a full House Member is unconstitutional, as I know 
other witnesses will focus more fully on this point. The 
Constitution grants Congress broad authority to exercise what 
it calls ``exclusive legislation in all cases whatsoever'' 
regarding the District. The main constitutional question, I 
believe, is whether the Constitution separately prevents the 
full House representation that this broad authority appears to 
allow. Some point to the provision saying that the House 
``shall be composed of members chosen . . . by the people of 
the several states.'' Congressional action and judicial 
precedent throughout American history, however, suggest that 
the word ``states'' is not an obstacle in providing full House 
representation for the District.
    In 1820, the Supreme Court held that Congress could impose 
direct Federal taxes on District residents, despite Article I, 
Section 2, of the Constitution, which then said that ``direct 
taxes shall be apportioned among the several states.'' If the 
word ``states'' did not prevent Congress from imposing taxes on 
District residents then, how can it prevent Congress from 
granting House representation to District residents now?
    Article III grants the Federal courts jurisdiction over 
controversies ``between citizens of different states.'' Noting 
that it would be ``extraordinary'' for courts to be open to 
citizens of States but not citizens of the District, the 
Supreme Court unanimously held that Congress may correct this 
anomaly and later upheld Congress' decision to do so. If the 
word ``states'' did not prevent the Congress from granting 
access to the Judicial Branch then, how can it prevent Congress 
from granting access to the Legislative Branch today?
    And even more to the current point, the Supreme Court in 
2000 affirmed a lower court decision that while the 
Constitution does not itself grant District residents the right 
to House representation, they may pursue that goal in ``other 
venues'' including the ``political process.''
    Which brings us here today.
    I recognize there are many who strongly oppose this 
legislation. There are many who wish the District voting rights 
issue would go away. It is not going to go away until we do the 
right thing and give those who live in the District of Columbia 
a vote in the House of Representatives. And I must note that 
this Democratic-controlled Congress could have simply pushed 
legislation focusing solely on the District. Instead, I am 
pleased that Chairman Lieberman has taken a more balanced and 
bipartisan approach.
    Indeed, this is a historic time for the citizens of the 
District of Columbia and a unique opportunity for my home State 
of Utah to receive a long overdue fourth congressional seat. I 
intend to make the most of it and hope that my fellow Senate 
colleagues will support me in this endeavor.
    I want to personally thank all who testify in favor of this 
and those who testify against it. I know that their thoughts 
are well taken and well thought out, but I believe this is the 
right thing to do. I want to thank those who are sitting here 
beside me at this witness table for the efforts that they have 
put forth because this will never happen without the help of 
them. And, in particular, these two Congress people and this 
Mayor, I personally appreciate them and personally support 
them, and I hope that we can get this through.
    Thank you, Mr. Chairman, for the opportunity to testify. If 
you will forgive me, I am due at two other venues right now, 
but it is a privilege to testify before you.
    Chairman Lieberman. Thanks, Senator Hatch, for an excellent 
statement. If I may just say, your reference to the composition 
of the House and Senate brings to mind, if I may be slightly 
parochial, that original decision was made at the 
Constitutional Convention in response to a suggestion made by 
two of Connecticut's delegates--Roger Sherman and Oliver 
Ellsworth. Of course, it became known forever as the 
``Connecticut Compromise,'' which defined the basis for 
membership in the House and the Senate.
    But I mention it to get to your second point, which I 
appreciate very much, that right at the outset we defined 
ourselves as a body in the spirit of compromise. There is not, 
in my opinion, enough compromise here these days--not 
compromising principle but compromising starting positions so 
you can get to common ground where you can get something done. 
And I think in this partnership that was started in the House 
and that you and I have now continued in the Senate, which 
corrects injustices against both the District and Utah--the 
District injustice being, of course, longstanding, the one in 
the case of Utah based on the 2000 Census--is in that same 
spirit of compromise.
    So I thank you also for your learned statement, and I look 
forward to working with you to see this through the Senate. We 
are going to try to move the bill through this Committee and 
out to the Senate floor as soon as we can.
    Senator Hatch. Well, thank you.
    Chairman Lieberman. Thank you very much.
    Congressman Davis, you have been a great leader here and 
brought us to where we are now. Thanks for being here, and we 
welcome your testimony now.

 TESTIMONY OF HON. TOM DAVIS,\1\ A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF VIRGINIA

    Mr. Davis. Well, thank you, Senator Lieberman and Senator 
Collins, and I want to acknowledge my senior Senator, Senator 
Warner, and thank you, Senator Pryor, for being here as well.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Davis appears in the Appendix on 
page 38.
---------------------------------------------------------------------------
    I have to say that the road moving this bill forward has 
been a long one, but at each step I am once again reminded it 
is an honor to work as part of a team that seeks to create a 
more perfect union.
    In talking about this legislation, the most important point 
I make is that no one can explain with a straight face why this 
country, the capital of the free world, is willing to send 
soldiers around the world to extend liberty to every corner of 
the globe, yet Americans living in this Federal District, who 
have fought and died in ten wars and pay Federal taxes, do not 
have any representation in the Federal legislature. The United 
States is quite right to sacrifice for liberty around the 
world, but we need to walk the walk at home as well. The 
District of Columbia House Voting Rights Act gives us a chance 
to do just that.
    People continuously ask me why I don't support a 
constitutional amendment or campaign for retrocession. I have 
two answers. First, I believe we should attempt what is 
achievable. At the present time, we have made a strong case 
that Congress has the authority--at least with respect to the 
House of Representatives--to remedy this problem and, by 
legislation, give the District a voting member in that body.
    Second, I think every single day that passes with Americans 
living in the District unrepresented is a travesty and an 
indictment of our government. The day has long passed for 
multi-year campaigns and pleas to unsympathetic partners. 
Congress can solve this problem--and it should.
    I think the Founders knew there would be unforeseen 
problems created in the ratification and everyday use of the 
Constitution. In the District Clause, they gave Congress the 
flexibility to use its power to solve those kinds of problems. 
All that is lacking now is the will to solve them.
    Another question I am continually asked is: What about the 
Senate? Doesn't this bill start us down a slippery slope to 
Senate representation? My answer is no. First of all, this 
action by this Congress does not obligate any future Congress 
to provide Senate representation. Moreover, since the basis of 
this legislation is the power of the Congress, no court can 
force us to exercise our prerogative against our will.
    But, more importantly, remember the House and the Senate 
are intrinsically different bodies created for different 
purposes, representing different entities. It is easy to see 
the House and the Senate as simply two hurdles on the same 
track, and perhaps in some ways they are. But each hurdle is 
there for a different reason. This is old stuff to most of us, 
but when it comes to the District of Columbia and the House of 
Representatives, the difference is real.
    James Madison put it best in Federalist Paper 39 when he 
explained the reason for having a bicameral legislative body. 
He said, ``The next relation is, to the sources from which the 
ordinary powers of government are to be derived. The House of 
Representatives will derive its powers from the people of 
America; and the people will be represented in the same 
proportion, and on the same principle, as they are in the 
legislature of a particular State. So far the government is 
national, not federal.''
    And I would remind my friends that when this was written 
and in the first 12 years of the Constitution, the members of 
the District were among the several States and voted for the 
House of Representatives.
    Madison goes on to state, ``The Senate, on the other hand, 
will derive its powers from the States, as political and 
coequal societies; and these will be represented on the 
principle of equality in the Senate, as they now are in the 
existing Congress.''
    So the House represents people, Senators represent States. 
Our body is national in nature; yours is Federal in nature.
    It is likely the only road to Senate representation is 
actual statehood--not the other way around. But, at any rate, 
giving the District a voting member in the House neither 
advances nor hinders the statehood effort. But it does give the 
District representation under the Constitution today.
    By now, every member is aware of the constitutional 
arguments. I ask that you think carefully about what you hear 
today. Every first year law student in this country learns that 
you cannot just read the Constitution and figure out what it 
means. But that is where the other side's argument starts and 
stops on this issue.
    Those opposing this bill ignore 200 years of case law and 
clear instruction from the court that this is a congressional 
matter and requires a congressional solution. Under their 
reading:
    District residents would have no right to a jury trial. You 
have to be from a State to have that right;
    District residents would have no right to sue people from 
outside the District in the Federal courts under diversity. 
Only people from States have that right;
    The Full Faith and Credit clause would not apply to the 
District. That applies only between States;
    The Federal Government would not be allowed to impose 
Federal taxes on District residents. The Constitution says 
direct taxes shall be apportioned among the several States;
    The District would be able to pass laws which interfere 
with interstate commerce. The Commerce Clause only allows 
Congress to regulate commerce among the several States. But 
they apply it to the District under the District Clause.
    In each of these cases the Supreme Court has held that 
Congress can consider the District a ``state'' for purposes of 
applying those fundamental provisions. Now, if Congress has the 
authority to do so regarding those constitutionally granted 
rights and duties, there should be no question we have the same 
authority to protect the most sacred right of every American--
to live and participate in a representative republic.
    As the Senate considers what the House has done and decides 
how it will proceed, it is my hope you will look for ways to 
agree with the House on this matter; that instead of looking 
for potholes you will look for roads. Of course, there are 
potholes in the road, and some today will point them out to 
you. But at its core, the Constitution is a road to 
guaranteeing liberty and dignity under the consent of the 
governed. Now is not the time to fail to walk that road.
    And, finally, let me just say on the Utah provisions, our 
original bill allowed Utah to represent. This has gone back and 
forth. Chairman Sensenbrenner, who is the chairman of the 
Judiciary Committee, would have supported a bill in the House 
that allowed Utah to do the apportionment. He opposed this on 
the basis of at-large. So, personally, I have no problem with 
what Senator Hatch has suggested.
    Thank you for you time.
    Chairman Lieberman. Thanks, Congressman Davis. Excellent 
statement.
    Congresswoman Norton, great to see you. I have probably 
said it too often, but in this very interesting constitutional 
situation, I cannot control myself from pointing out that we 
met each other a few years ago when we were both law school 
students at the same law school, and I was impressed by you 
then and admired you greatly, as I continue to do. Thank you 
for your great leadership in this cause. We welcome your 
testimony now.

   TESTIMONY OF HON. ELEANOR HOLMES NORTON,\1\ A DELEGATE IN 
             CONGRESS FROM THE DISTRICT OF COLUMBIA

    Ms. Norton. Thank you very much, Mr. Chairman. If I may say 
so, we were both on our way to a certain civil rights movement 
at that time.
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    \1\ The prepared statement of Ms. Norton appears in the Appendix on 
page 41.
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    Chairman Lieberman. Yes, we were.
    Ms. Norton. Members of the Committee and Mr. Chairman, I 
must say that, Mr. Chairman, after I heard the remarks of my 
good friend, Mr. Hatch, the Senator from Utah, I was inclined 
to associate myself with the remarks of the Senator from Utah 
and simply shut up. So I ask that you listen closely to him. As 
much as Senator Hatch and Senator Bennett, who are original 
cosponsors of this bill, want an extra seat, a seat that they 
feel very indignant at having been denied, went all the way to 
the Supreme Court to try to get it, I think they would have 
gotten it had the Supreme Court noted that the State of Utah 
had the population but they were out doing missionary work. You 
can imagine the outrage of the people of Utah when the few 
votes short comes because people are spreading the gospel as 
they see it.
    So they bring a kind of zeal to this that should not be 
forgotten, and I think that you heard in Senator Hatch's 
testimony--and I should say that I am so appreciative of the 
way that Senator Hatch and Governor Jon Huntsman have spoken 
equally of the need to grant the rights to the District of 
Columbia.
    I appreciate, Mr. Chairman, that you and Senator Hatch and 
Senator Bennett sent a letter just as the House was about to 
finish business when it looked like this bill would indeed pass 
a Republican House and asked that the bill be brought to the 
floor immediately.
    I believe if it had been brought to the floor in that 
posture, as a matter of senatorial courtesy the Senate, the 
Republican Senate, seeing that there was before them a bill 
that affected no other State and in the great traditions of the 
Senate, when a bill affects no other State, I believe that the 
Senate, the Republican Senate, would have passed that bill. And 
we are asking no less of the Senate today.
    This bill was born bipartisan, and it was not born on my 
side of the aisle. It was born at my right hand here. And 
Representative Tom Davis has never let up, has never been 
discouraged, and there were many moments when my side and his 
side both gave us reason. There was never any lessening of his 
zeal, and I was totally dependent upon him because I was in the 
minority. And we shall never forget the way in which he 
persevered against the odds.
    Now, my good friend Mr. Davis and I have been, in separate 
appearances, on the ``Colbert Report.'' Colbert invites me on. 
He likes me because he likes to make fun of the fact that the 
residents of the District of Columbia do not have the vote. But 
I think that he invited Mr. Davis on, I think even after the 
vote. The last time I went on right after the vote, I said to 
Mr. Colbert, ``Look, the residents of the District of Columbia 
are entirely gracious people. They will accept either your 
congratulations or your apology.'' But Mr. Colbert, being Mr. 
Colbert, I think I got neither.
    But when Mr. Davis went on, I have not seen this, Mr. 
Davis, but I believe he asked if Mr. Davis and I were having an 
affair.
    [Laughter.]
    Ms. Norton. Now, if there is any such thing as a political 
affair, I think that I have to plead guilty, and I hope I have 
given you--
    [Laughter.]
    Ms. Norton [continuing]. The right cover to your wife now, 
Mr. Davis.
    Mr. Chairman, I have taken some pains at written testimony, 
and I am not going to tell you what witnesses you have invited 
are likely to tell you. I very much appreciated the very 
incisive testimony of my partner, Mr. Davis. But I am going to 
try to tell you a few things that may not have come to your 
attention, not that they are unknown.
    I would like to say a word on the constitutional point. The 
former constitutional lawyer in me will not rest. But I am 
really going to leave that to Professor Viet Dinh.
    Now, I want to alert you, pay attention to Professor Dinh, 
please, and do not listen to my good friend, Mr. Turley.
    [Laughter.]
    Ms. Norton. He and I come from the same fraternity. I 
continued as a professor at Georgetown University Law Center, 
but I certainly do not associate myself with his remarks. I 
understand that in his professorial zeal he has practiced being 
on the other side. I cannot believe that he is really on the 
other side here. But Professor Dinh is not just on my side--and 
here you will have to forgive me several times--he is on the 
right side. He is testifying for the third time. And I think 
when you testify on the constitutionality of a bill for the 
third time and you come from a conservative Republican 
Administration, you must really mean it.
    You may know, of course, that Professor Dinh was President 
Bush's point man on constitutional matters when he served in 
the Ashcroft Justice Department. I do not believe he would come 
forward with so convincing testimony if it did not comport with 
his own sense of the Constitution. He was the Attorney General 
for Legal Policy in the Administration.
    I have to tell you that when I had a chance to see the 
President recently, I said to him that I thought he would be 
receiving a bill shortly and that he might have some pesky 
aides in the Justice Department who would advise him not to 
sign the bill. So I said to him that I hoped he would take into 
account that the constitutional scholars we relied on were 
former Court of Appeals Judge Kenneth Starr and Professor Viet 
Dinh.
    At that point, the President looked me dead in the eye and 
said, ``Wow.'' I am quoting, Mr. Chairman. And I think he was 
surprised, and you may be surprised, too. But I wish you would 
listen to what Professor Dinh has to say. Yes, listen to 
Professor Turley. I have listened to both sides. Fortunately, 
the District of Columbia has the better side of the case.
    Second, I want to say a word about originalism or what the 
Framers meant because I cannot let rest the slander that the 
Framers of our Constitution would have fought a war for 
representation and then turned around and denied representation 
to the citizens of their own capital. It is a slander, and it 
makes me angry every time I hear it. If you want to say that 
the bill does not meet some kind of constitutional standard, 
blame it on somebody else. Blame it on Jonathan Turley. But 
don't blame it on the Framers of the Constitution.
    The veterans of the Revolutionary War were living on the 
land that three Framers from Virginia and three Framers from 
Maryland signed the Constitution turning over that land and 
making it the capital of the United States. It is inconceivable 
that they would have signed on to a document believing that 
they were denying their own residents the vote that they then 
had. And the fact that they continued to have that vote for 10 
years during the transition period and that the first Congress 
in its very first session assured those two States that it 
would carry out the will by law, guarding the rights of those 
citizens, ought to be enough to lay to rest the notion that it 
was the Framers that did it to the District of Columbia. There 
was no capital at the time, Mr. Chairman. So the Framers could 
not, in fact, give the vote to the capital. It was a plot of 
land in transition to become the capital under the jurisdiction 
of the Congress of the United States.
    Remember, the Framers had never done this before. They know 
how to give the vote in their States, but how do you give a 
vote when you think people already have the vote and when what 
is necessary is for the Congress to recognize the vote? You are 
the Framers. You know that the people who will be in that first 
Congress and who will be sitting there have been there. You 
understand originalism. Then it seems to me inconceivable to 
argue that somehow the document was planted with the notion 
that the people who lived in the capital would have no vote.
    Now, the Framers knew just how to deny rights to people 
because they certainly did not give African Americans the right 
that we had to fight a civil war to have. It certainly did not 
give women the right to vote. The Framers knew exactly how to 
say that there would or would not be rights. So if you want to 
hang your notion on the Constitution, make sure where you are 
hanging it, and do not hang it around the neck of the Framers 
of the Constitution.
    The second issue I want to bring to your attention is one 
that is seldom spoken of. The reason it is seldom spoken of is 
that every single human being who lives in the District of 
Columbia has been denied the right to vote. Those who were 
white, those who were black, wherever you came from. If you 
became simultaneously a citizen of the United States and of the 
District of Columbia, you would be without a vote. If you had 
the vote where you lived and you walked over the District line 
and said, ``I live here now,'' you were deprived of the vote.
    Until the late 1950s, the majority of the people living in 
the District of Columbia were white. But the District of 
Columbia, because it was so close to the Confederate States, 
the States of Maryland and Virginia always had a large influx 
of African Americans.
    My party, Mr. Chairman, has had more to do with the fact 
that the District of Columbia was a segregated jurisdiction, 
that I went to segregated schools, that I could not go in the 
Warner Theater downtown, and race had everything to do with the 
fact that the residents of the District of Columbia, white and 
black, were denied the vote.
    If I may quote a Southern Senator, who I think put it the 
way things used to be put in this body when it came to race, 
straight out, there was no shame, and I am quoting a Senator 
from Alabama: ``The Negroes flocked in, and there was only one 
way out, and that was to deny suffrage entirely to every human 
being in the District.''
    Mr. Chairman, race is a part of the legacy. Race is not the 
reason. The reasons are many, but there is no way to overlook 
the fact that this is the Voting Rights Act of 2007, just as 
last year we passed the Voting Rights Act of 2006.
    Mr. Chairman, finally, could I just indicate what I can 
only call a sentimental point, a point I never raised until Mr. 
Davis and I got agreement on the bill, and it really has to do 
with what you raised in the beginning: My own civil rights 
past.
    I went into the South as a member of the Student Non-
Violent Coordinating Committee into the thick of Mississippi, 
and I have to laugh now. This was in the early 1960s. I went 
South as a kid when there was no mayor like the young man 
sitting to my left. There was no council. There was no 
delegate. There was no democracy. And here was I, entranced by 
the larger-than-life civil rights movement, still in law 
school. I could not see or did not see--of course, I 
understood, but I did not see the forest--I saw the forest, 
rather. The forest was the civil rights movement. I did not see 
the trees that had no leaves on them. The trees were the city 
where I was born and where I was raised.
    Mr. Chairman, I have to say to you, and I had to confess to 
myself, that the bill meant a great deal to me personally, that 
it meant a great deal to me personally because I am the 
daughter of Coleman Holmes; I am the granddaughter of Richard 
Holmes, who entered the DC Fire Department in 1902 and had to 
petition a few years later for an all-black company because 
blacks could not become an officer in a paramilitary 
institution; and I am the great-granddaughter of Richard 
Holmes, who walked off a slave plantation in Virginia in the 
1850s and got as far as the District of Columbia and started 
our family and a church here with other runaway slaves.
    My great-grandfather Richard was in the District of 
Columbia, a slave, in 1863, when Abraham Lincoln freed the 
slaves 9 months ahead of the Emancipation Proclamation. So when 
Mr. Davis and I reached agreement, I allowed myself a moment to 
think about my own family and especially about Richard Holmes, 
who came to the District searching not for a vote but for 
freedom--for freedom which is now available in every State of 
the Union, but not in the capital of the United States.
    So, Mr. Chairman, Members of the Senate can find any way, 
any reason they want to do it. If they do not want to do it for 
the District, do it for the House. The House deserves the 
comity. Only the House is affected. Your house is not affected. 
For you to deny what our House has fought for and died and done 
in a bipartisan way is to show no deference, no respect to the 
House of Representatives of the United States. So if you do not 
want to do it for the District, do it for the House. And if you 
do not want to do it for the District, do it for Utah, who 
feels outrage at 10 years that we have felt for 206 years.
    I do not care how you do it, Mr. Chairman. The people of 
the District of Columbia ask only this: Let this be the last 
year that you ask us to do what the 16th Amendment does not say 
in its words. It says only the States shall pay Federal income 
taxes. You deny this vote, a lot of us will be coming to get a 
lot of money back because the Supreme Court, which is quoted, 
had no trouble saying we see that the District of Columbia is 
not mentioned in the 16th Amendment and you have got to pay up 
anyway.
    So I am saying if you do not want to do it for us, if you 
do not want to do it for Utah, if you do not want to do it for 
the House, do it in the name of the young men and women who are 
now fighting in Iraq and Afghanistan and particularly in the 
name of those whose funerals I have attended. I ask you in the 
name of the people I represent for the first time in 206 years 
to do what the House would do for its body, to do what the 
people's House wants to do, and grant us the right, not in your 
House, but in the House of Representatives of the United States 
of America.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you, my dear friend.
    [Applause.]
    Normally we don't allow applause in this hearing room, but 
I join in that applause for you. That was a powerful, 
compelling statement. It was moving. It was brilliant. It was 
informed. It was convincing. Your service is a blessing to the 
people of the District and our Nation. In your life, you speak 
to all that America is about and has not yet achieved. But you 
drive us forward, as you do in this case. I thank you very 
much.
    I think about the best thing I can tell you in response to 
your statement is that Senator Pryor just came over to me on 
the way out--he had to go to another meeting--and he said, ``I 
want you to know I have listened to Delegate Norton, and I am 
going to sign on as a cosponsor of your legislation.''
    [Applause.]
    Okay. Mayor Fenty, thanks for being here. That is a tough 
one to follow.
    Senator Landrieu. Mr. Chairman, could I just say--
    Chairman Lieberman. Yes, go ahead, Senator Landrieu.

             OPENING STATEMENT OF SENATOR LANDRIEU

    Senator Landrieu. Thank you.
    Mayor, I am going to have to step out to be on the floor to 
offer an amendment at 11 o'clock, but I wanted to be here to 
support the legislation. I signed on as a cosponsor. I do not 
know if this is accurate, but I am going to check, and I am so 
pleased that Senator Pryor has signed on as a cosponsor.
    We may be the first two Democratic Senators to support this 
legislation. I am not sure. But of those currently serving, we 
are the first two. There may have been others in the past, but 
we are pleased to do that and very supportive of and recognize 
the historical significance of what we are working on and that 
it has been a bipartisan effort.
    It is going to take a great deal of support in the Senate 
from our Republican colleagues to move past the cloture vote. I 
am hoping that the testimony this morning can move at least 10, 
if not more, Republican colleagues to join with us in getting 
this historic piece of legislation passed. Thank you.
    Chairman Lieberman. Well, thank you, Senator Landrieu. We 
have a little momentum going here.
    Mayor Fenty, thank you very much for being here. As I said 
in my opening statement, you took this on right away. You 
understand its importance as a matter of principle, but also as 
a matter of the practical ability to govern and lead this city 
and move it forward. So I thank you for that, and we look 
forward to your testimony now.

   TESTIMONY OF HON. ADRIAN M. FENTY,\1\ MAYOR, DISTRICT OF 
                            COLUMBIA

    Mayor Fenty. Well, thank you very much, Mr. Chairman, 
Ranking Member Collins, Senator McCaskill, Senator Warner, 
Secretary Kemp, Congressman Davis, and certainly our more than 
able Congresswoman Norton. It is my pleasure to be here today 
to speak to you about S. 1257, the District of Columbia Voting 
Rights Act. My name is Adrian Fenty, for the record, and I took 
office this past January as the fifth elected Mayor of the 
District of Columbia.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Fenty appears in the Appendix on 
page 45.
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    The District of Columbia has 572,000 residents. Our 
population is approximately 75,000 people greater than that of 
the State of Wyoming, which, as everybody is aware, has two 
Senators and a Member of the House of Representatives.
    The District of Columbia Voting Rights Act represents the 
latest step in an expansion of democracy for the District of 
Columbia. The District had brief home rule in the 19th Century. 
We voted in our first presidential election in 1964. We elected 
our first local board of education in 1968, and Congress 
restored the position of nonvoting Delegate to the House in 
1970. Our modern home rule government, including the Mayor and 
the Council, began in 1973.
    Today, my constituents--your neighbors--are the only people 
in the United States of America who pay Federal income taxes 
and have no voting representation in the U.S. Congress. Our 
Federal taxes, to the tune of about $6 billion a year, are the 
second highest per capita among the States. Yet we have no say 
in how that money is spent. We serve on Federal juries, with no 
say in the laws we take an oath to uphold at the courthouse. 
And we have suffered casualties in every major war--including 
Iraq--without ever having a vote in the legislative body that 
approves and funds military action.
    As you know, Congress also oversees our locally funded 
budget and our locally passed laws.
    Mr. Chairman and Members of the Committee, we are the only 
capital of a democracy on Earth that has no vote in the 
national legislature. I am here to testify to you that we 
cannot continue to be an example in the eyes of the rest of the 
world when this is the case. This injustice has stood for more 
than 200 years, and today I join this distinguished panel in 
saying that you have the power to end it. It is Congress that 
eliminated voting rights for the District of Columbia in 1801, 
and it is Congress that can give them back.
    I am aware of the political reality of adding a seat in a 
narrowly divided House for a jurisdiction that tends to elect 
Democrats. Congresswoman Norton and Congressman Davis, a 
Republican, have struck a balance in the District of Columbia 
Voting Rights Act by adding a seat for Utah as well. That 
State, as you all know, missed an additional congressional 
district by 857 people in the last census, amid objections over 
not including 11,000 overseas missionaries.
    Such expansions of Congress have historically come in 
balanced pairs, such as the addition of seats for Republican 
Alaska and Democratic Hawaii in 1959. Notably, it is a 
bipartisan pair of Senators who have brought the Voting Rights 
Act into this body, and we thank both you, Chairman Lieberman 
and Senator Hatch.
    I am also aware of the constitutional objections to this 
legislation. As the chief executive for the District of 
Columbia, I have taken an oath to defend the Constitution of 
the United States. Thus, while it is my desire to see the 
District represented in the House, it is also my responsibility 
to endorse only a means of doing so that would be 
constitutional.
    Opponents of the District of Columbia Voting Rights Act 
contend that it is unconstitutional because the Constitution 
limits the House of Representatives to members elected by ``the 
several States'' and, therefore, cannot include the District of 
Columbia. We disagree strongly and have no shortage of legal 
opinions from scholars on both sides of the aisle who share our 
view. Congress has acted literally hundreds of times under the 
District Clause and other parts of the Constitution to treat 
the District of Columbia as a ``state'' for other reasons, 
including taxation, as has been mentioned, and diversity of 
citizenship in Federal court. The fundamental right of 
electoral participation should also be included in this list.
    I join this distinguished panel when I say that I believe 
the Framers of the Constitution could never have imagined a 
thriving metropolis of more than half a million people living 
year-round in the District of Columbia, many unconnected to the 
District's original purpose of housing the Federal Government.
    It is beyond good sense that the Framers of the 
Constitution would intend to deprive residents of the Nation's 
capital of their fundamental right to vote.
    It is also beyond good sense that our lack of democracy 
continues, more than 200 years later. Thus, on behalf of the 
572,000 residents of the District of Columbia, I urge you to 
take action on this important legislation as soon as possible, 
and I thank you again for calling this hearing and allowing me 
to testify today.
    Chairman Lieberman. Thank you very much, Mayor Fenty. If I 
might continue the judicial metaphor, I thought that was an 
excellent closing statement, concluding statement for the 
argument.
    I thank the panel, and I know all of you have to go on to 
other work, but you have really started us off in a very 
thoughtful, indeed an inspiring way. Thank you very much. Have 
a good day.
    We will call the second panel: Hon. Jack Kemp, Wade 
Henderson, Viet Dinh, and Jonathan R. Turley. We thank the 
members of this panel. We are honored to have you all here and 
know that the Committee will benefit greatly from your 
testimony.
    We are going to begin with the Hon. Jack Kemp. Great to 
have you here, Secretary Kemp. Mr. Kemp, if I may put it this 
way, does not have to do this. He is a believer. And it is 
totally consistent with a life that has been all about fighting 
for justice and fighting for the American dream, really, for 
people.
    Mr. Kemp, as you know, has been a Member of Congress, a 
member of the Cabinet. I might say that Jack Kemp and I belong 
to a very exclusive club: The Association of Unsuccessful Vice 
Presidential Candidates.
    [Laughter.]
    Mr. Kemp. Sad for the country, Mr. Chairman.
    Chairman Lieberman. Yes, I agree.
    Senator Collins. As do I.
    Chairman Lieberman. Thank you. Did Senator McCaskill want 
to say a word before we go to the witnesses?
    Senator McCaskill. If I could just briefly.
    Chairman Lieberman. Go ahead.

             OPENING STATEMENT OF SENATOR McCASKILL

    Senator McCaskill. I am going to have to leave. Hopefully I 
will be back. I want to thank all of you for being here. I also 
want to particularly thank Jack Kemp for being engaged in this 
issue.
    As the Chairman said, you do not have to, and it says a lot 
about who you are as an American that you are here and taking 
your valuable time to do this.
    I just want to say, Mr. Chairman, that when I first got 
elected to office in 1983 as a Missouri State Representative, 
the civil rights organizations in Missouri came to me as a 
freshman State Representative in Missouri and laid out the case 
for a resolution recognizing the District of Columbia for full 
representation in voting rights. And I was young and naive, and 
I said, ``Well, of course, I will sponsor that.'' And so I did.
    And I remember vividly the committee hearing that we had on 
that resolution in 1983 in the Missouri Legislature, and 
everyone was very quiet and did not ask very many questions. 
And later on, one of the good old boys came up to me out in the 
hallway and said, ``Do you have any idea what little chance 
that resolution has in the Missouri Legislature?'' And I said, 
``Well, it seems to me the right thing to do.''
    Now, I do not know what it says about our country that 
almost 25 years later I am sitting here in the U.S. Senate and 
we are still grappling with what should be a basic of this 
democracy. I am ashamed of our country that we have not fixed 
this, and I would certainly welcome the opportunity to add on 
to this legislation as a cosponsor to right what I believe is a 
significant wrong in a country where we brag about our ability 
to allow every person in our country to have a say in the way 
their government is run.
    Thank you very much, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator McCaskill. Great 
statement, and thanks for your support.
    Mr. Kemp, welcome.

  TESTIMONY OF HON. JACK KEMP,\1\ FOUNDER AND CHAIRMAN, KEMP 
                            PARTNERS

    Mr. Kemp. Well, Mr. Chairman and Senator Collins, this is a 
great pleasure. Thank you, Senator McCaskill, for that comment.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Kemp appears in the Appendix on 
page 48.
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    Let me tell you why I am here. Not only is it the right 
thing to do, but I think history is shining a very bright light 
on those of us in both political parties. I loved Eleanor 
Holmes Norton's testimony, and she got emotional about being a 
black woman in SNCC, going South to defend the whole issue of 
voting rights for all Americans and then returning to her own 
city where she could not have a vote in the Congress. She has a 
right to get emotional.
    She mentioned her party. I want to mention my party, Mr. 
Chairman. I will let the constitutional issues be handled by 
Viet Dinh and Ken Starr and my friend Wade Henderson and folks 
from DC Vote. I want to talk politics--raw, pure politics. It 
is not good for this country to have the Democratic Party that 
had a horrible history and overcame it and the Republican Party 
with a wonderful legacy established by Abraham Lincoln, 
Frederick Douglass, the Chairman of the D.C. Republican Party, 
U.S. Grant sending Federal troops as the first President of the 
United States to send Federal troops, a Republican President, 
to Mississippi and Louisiana to guarantee the voting rights of 
emancipated slaves and to break up the KKK. We know what Dwight 
Eisenhower had to do in order to integrate the public schools 
in Arkansas.
    And then, unfortunately, Barry Goldwater, our candidate and 
the titular leader of the Republican Party, who I supported--I 
was playing professional football at the time--in October or 
September of 1964 voted against the 1965 civil rights act.
    I did not say anything. I plead ignorance. I just did not 
consider that as great an issue as my black teammates did. And 
I apologize for that. I was not in Selma on the Edmund Pettus 
Bridge with John Lewis in 1965, where he got his head bashed 
in.
    As I said, my party had a great history, Senator Collins, 
and we walked away from it. We cannot walk away from this. Mr. 
Lincoln said to the 1862 Congress, ``We cannot escape 
history.'' We cannot escape this vote. It is going to come. We 
are being watched by the whole world, as was pointed out by 
Adrian Fenty and Tom Davis. Fighting for democracy in Baghdad 
and Kabul and not allowing it to take root after more than 200 
years in the District of Columbia?
    I am on the board of Howard University. Last Saturday, we 
had our graduation ceremony. The respect in that audience of 
35,000 people for the speakers, for the men and women who got 
the honorary degrees, for Oprah Winfrey's speech talking about 
morality and God and country--and she did not mention the DC 
vote, but it was one of the most--I am going to use the word 
``conservative''--small ``c''--in the original meaning of the 
word to be respectful of our history. It was conservative. Kids 
thanked their parents and thanked their teachers and 
professors.
    Now, we have a chance to do right or wrong, as was pointed 
out, and I think it has got to be done. I do not live in the 
District. My son does. My four grandsons--I am getting 
emotional now. My four grandsons live here. I was told by a 
member of the Republican Party, Senator, ``If they want to vote 
someday, let them move to Maryland.''
    It has been said that the opposite of love is not hate; it 
is indifference. To be indifferent to the aspirations of 
572,000 people whose sons and daughters are in harm's way, 
watching this vote and deny them the democratic vote, to me is 
shameful. And as Delegate Norton said, it is slanderous to the 
people of this District.
    Now I want to talk about the White House. I am 71 years 
old. I have no aspirations. I am a recovering politician.
    [Laughter.]
    My day, I am sure some will say, has passed. But my voice I 
hope is heard down the street. The advisers to the President of 
the United States, in my opinion, are putting him in harm's way 
politically to leave a legacy of denying this vote either by a 
veto or by encouraging a filibuster on the floor of the U.S. 
Senate. I hope we get those 10 votes in the Republican Party. I 
think we will because I do not think you can listen to the 
testimony of Viet Dinh, Ken Starr, Wade Henderson, and, with 
all due respect to my friend Jonathan Turley, I would hate to 
be him today.
    [Laughter.]
    He said to me I was right.
    The President has a lot on his plate. I do not think he has 
yet heard the arguments well enough, and I hope Viet Dinh and 
Ken Starr and other members who understand the constitutional 
ramifications of this bill get a chance to be heard at the 
right level.
    Now, it is true that Article I, Section 2, of the 
Constitution is an argument that is being used to deny this 
vote. Viet Dinh will point out Article I, Section 8--clause 17, 
is it, Viet?
    Mr. Dinh. Yes.
    Mr. Kemp. Gives the authority to the U.S. Congress to grant 
the vote. If there is a doubt constitutionally--and there can 
be doubts. Men and women of good will can come to different 
conclusions. But if there is a doubt, let it be adjudicated at 
the highest level, not by a staffer who is opposed--excuse me, 
staff. I love the work you do.
    [Laughter.]
    But I have read some of the statements that have been made 
in the House by the Republican Members of the Congress, and 
they are just absolutely embarrassing to the party of Abraham 
Lincoln and Frederick Douglass.
    Daddy King was a Republican. The father of Martin Luther 
King, Jr., was a Republican. He was preaching in the Ebenezer 
Baptist Church in Atlanta in 1960 when Richard Nixon, our 
candidate, refused to call Coretta Scott King to express any 
sympathy for Dr. King being in the Georgia State Penitentiary 
for a parking violation. Raise your hands if you have ever been 
in the penitentiary for a parking violation. We know why he was 
there, handcuffed, shackled. And Coretta Scott King got a call 
from John F. Kennedy, the candidate of your party, Mr. 
Lieberman, and he talked for 10 seconds, 15 seconds, and she 
told Daddy. He got up the next morning in Ebenezer Baptist and 
said he was going to take a suitcase full of votes to John F. 
Kennedy. That switched the election in 1960. It was not 
Chicago. It was not New Orleans or Louisiana or Houston, Texas. 
It was the failure of the Republican candidate to maintain his 
capital built by Abraham Lincoln, Frederick Douglass, U.S. 
Grant, and Dwight Eisenhower. And he went from 70 percent or so 
of the black vote down to about 9 percent, and we have been 
there ever since. That to me is disgraceful. It hurts this 
country. It hurts the Senate. It hurts our party. It hurts the 
black community, in my opinion. I am not black, but it is not 
good for black folks to be taken for granted by one party and 
written off by our party.
    So, Senator Collins, you have a big burden on your 
shoulders.
    [Laughter.]
    I appreciate your comments. I am not putting you on the 
spot. I am putting the party on the spot. I am putting the 
notice to the party of the people I have mentioned and the 
White House to open their eyes. They are not going to get 
another chance. This is not going to change the vote of America 
per se. But it will be a beginning of showing, as the extension 
of the Voting Rights Act, and signed by President Bush.
    I mentioned I was on the board of Howard. Howard was set up 
by a Republican Congress, by a Republican President, out of the 
Freedmen's Bureau, and a Democratic President vetoed the 
funding for Howard University and the Freedmen's Bureau, and 
guess what? A Republican Congress in 1866 overrode President 
Johnson's veto of the funding for Howard.
    So, look, I am just suggesting and stating the great 
history of the Republican Party, but we have walked away from 
it; the terrible history of the Democratic Party that has been 
overcome thanks to Lyndon Baines Johnson. I will never forget--
and I will close with this wonderful story on the History 
Channel--watching Lyndon Johnson lean into George Wallace in 
the Oval Office. He said: Governor, which side of history do 
you want to be remembered by? Standing in the school door 
preventing those little black children from going to school and 
preventing black folks from having the vote? Or do you want to 
be recorded in the annals of history with those who stood up 
for all Americans and their civil, human, equal, voting rights? 
And it changed George Wallace. I do not know if it changed his 
heart, but he went outside of the Oval Office, held a press 
conference out of the White House, and announced his switch.
    I do not know what is in the hearts and minds of my 
colleagues, but we have a chance to be recorded in the annals 
of the history books on the right side of a civil rights issue 
as much as any issue that has come before this U.S. Congress.
    So, Mr. Chairman, thank you for your sponsorship, Senator 
Collins, for your friendship and leadership and tremendous 
sympathy for this issue. I would love to help you get those 
necessary Republican votes and then get it signed by the 
President of the United States. Thank you, sir.
    Chairman Lieberman. Mr. Kemp, thank you. You said you were 
going to talk pure politics. You talked purely principled 
politics.
    Mr. Henderson. Absolutely.
    Chairman Lieberman. And you spoke from the best tradition 
of the principles of the Republican Party. There is no one like 
you. If anybody says your time is over, do not believe them.
    [Laughter.]
    You have a lot of time on the clock, and I know that you 
have already been out there talking to Republican colleagues in 
the Senate. You give me hope that we are going to get more than 
60 votes in the Senate for this. We are going to conference it. 
And then let us not assume that this President will not sign 
this bill. I take your point there and look forward to working 
with you on it. Thanks, Mr. Kemp.
    Wade Henderson, thank you very much for being here. You are 
a familiar figure and a greatly respected figure here on the 
Hill now as President and Chief Executive Officer of the 
Leadership Conference on Civil Rights. Thank you for your 
testimony.

 TESTIMONY OF WADE HENDERSON,\1\ PRESIDENT AND CHIEF EXECUTIVE 
         OFFICER, LEADERSHIP CONFERENCE ON CIVIL RIGHTS

    Mr. Henderson. Thank you, Chairman Lieberman and Ranking 
Member Collins, Senator Akaka, other Members of the Committee. 
Indeed, I am Wade Henderson, the President of the Leadership 
Conference on Civil Rights, the Nation's oldest and largest 
civil and human rights coalition.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Henderson appears in the Appendix 
on page 52.
---------------------------------------------------------------------------
    I am also the Joseph Rauh Professor of Public Interest Law 
at the University of the District of Columbia Law School, and 
so I am here today in both capacities, and I am honored to 
speak before you about the Leadership Conference's strong 
support for providing voting rights to the District of Columbia 
and in support of the District of Columbia Voting Rights Act.
    Mr. Chairman, let me say at the outset that I am deeply 
grateful to you for this hearing and also for your many years 
of support for voting rights for District residents. Your 
record of commitment to this issue is second to none, and so it 
is a privilege to appear before you.
    It is also a privilege to serve on the panel with this 
incredible force of nature to my right, Secretary Jack Kemp, 
who has been so extraordinary and such a committed advocate on 
behalf of voting rights, second to none in the city, and 
obviously with my other colleagues, I am happy to be here.
    Now, you have assembled a level of expertise and eloquence 
that is really remarkable in the panelists today, and it gave 
me a bit of difficulty in organizing my own testimony because 
many of the things that I will say have already been said well 
and eloquently, or they will be well said, by my fellow 
witnesses. But it did occur to me that it is common in 
organizing these hearings to bring both expertise, which I 
think I bring, but also I come before you as an affected 
individual because of my residence in the District of Columbia, 
having been born here.
    Now, with those two roles in mind, I would like to proceed 
by answering what I see as the two most fundamental questions 
that have brought us here today: First, why this issue? And, 
second, why this approach?
    Now, in answering the first question, I will begin really 
on a personal level. I do want to associate myself with the 
remarks of Delegate Eleanor Holmes Norton. I am a long-time 
resident of the District of Columbia, having been born here, 
and I am a graduate of Howard University, which Jack Kemp 
mentioned--he serves on its board--as well as the Rutgers 
University School of Law.
    I have seen many changes that have made the Nation a better 
place, more aligned with its ideals. I have worked my life as a 
civil rights advocate, and I have come before Congress on many 
occasions on behalf of my fellow Americans. And certainly the 
changes that we have seen for African Americans, Latinos, Asian 
Americans, gays and lesbians, women, literally the entire 
country, have been significant and Congress has led the way.
    Now, I have seen great progress in the District as well. 
And when I was born at the old Freedmen's Hospital, on Howard 
University's campus, the city's hospitals were racially 
segregated by law. That is no longer the case. LeDroit Park, 
where I grew up and where I now own a home, was once an all-
black neighborhood by law and by custom. Today, people of all 
races from all around the world have made it a global village.
    Gone, too, is the legalized system of separate schooling 
that sent me to an all-black elementary school, despite the 
fact that I started grade school after the landmark ruling in 
Brown v. Board of Education had officially outlawed racial 
segregation in public schools.
    And yet one thing still has yet to change: As a lifelong 
resident of the District and in spite of all my efforts to 
speak out on Capitol Hill on behalf of other Americans, I have 
never had anyone on Capital Hill who can speak out legitimately 
on my behalf. My hundreds of thousands of neighbors in this 
city and I have always been mere spectators to our democracy. 
And even though we pay Federal taxes, fight courageously in 
wars, and fulfill all other obligations of citizenship, we 
still have no voice when Congress makes decisions for the 
entire Nation on matters as important as war and peace, taxes 
and spending, health care, education, immigration policy, or 
the environment.
    Now, while Congress does have special powers over the 
District, it decides purely local matters for us without giving 
us a single, solitary vote. It decides which judges will hear 
purely local disputes under our city's laws or how to spend 
local tax revenues. It can even decide what slogan the city may 
print on its license plates. Adding insult to injury, Congress 
in recent years has even kept our elected city officials from 
using our own tax dollars to advocate for a change in this 
situation. Now, it is really enough to make people feel like 
dumping crates of tea, if not their tax dollars, into the 
Potomac River.
    Shifting to a broader civil and human rights perspective, 
the disenfranchisement of District residents before Congress 
stands out as the most blatant violation today of the most 
important civil right we have--the right to vote. Without the 
ability to hold our leaders accountable, all of our other 
rights are illusory. Our Nation has made tremendous progress 
throughout history in expanding this right, including through 
the 15th, 19th, and 26th Amendments; and in the process, it has 
become a role model for the rest of the world.
    And the Voting Rights Act of 1965 has long been the most 
effective civil rights law we have. It has resulted in a 
Congress that looks more like the Nation we represent. Its 
unanimous renewal by this chamber last year, despite some 
unfortunate resistance in the House, stands out as one of 
Congress' proudest moments in many years.
    In spite of this progress, however, one thing remains 
painfully clear: The right to vote is meaningless if you cannot 
put anyone in office who has a vote. Until District residents 
have a vote in Congress, they will not be much better off than 
African Americans in the South were before 1965, and the 
efforts of the civil rights movement will remain incomplete.
    Disenfranchisement also undermines our Nation's moral high 
ground in promoting democracy and human rights in other parts 
of the world. Indeed, the international community has already 
taken notice. In December 2003, for example, the Organization 
of American States declared the United States in violation of 
provisions of the American Declaration of the Rights and Duties 
of Man. In 2005, the Organization for Security and Cooperation 
in Europe also weighed in, urging the United States to ``adopt 
such legislation as may be necessary'' to provide District 
residents with equal voting rights.
    Now, for reasons like these, extending voting rights to 
District residents is one of the Leadership Conference's 
highest legislative priorities and will remain so every year 
until it is achieved.
    Now, turning to my second more specific question--Why this 
approach?--I must admit that when Representative Tom Davis and 
Delegate Norton first supported pairing a first-ever vote in 
the House for the District of Columbia with an additional House 
seat in Utah, I was skeptical. While I greatly appreciated the 
efforts, I recognized that there indeed were some political 
problems. But a few things have changed.
    Last year, the Supreme Court, for better or worse, upheld 
mid-decade redistricting in Texas in LULAC v. Perry, which was 
one of our key concerns. And, in addition, last fall the 
governor and legislature of Utah went to great lengths to 
propose a new congressional map that avoided the kinds of 
problems that many of us anticipated. And by preserving the 
congressional balance of power, the seemingly impossible now 
becomes attainable.
    At the same time, the District of Columbia Voting Rights 
Act is still not without its critics, and I would like to 
address some of the other concerns that have been raised. I am 
going to leave it to my colleague Viet Dinh to lead the 
conversation on constitutionality, although I am prepared to 
discuss it in full, and I will answer any questions that you 
may have. But I do want to focus in the limited time that I 
have left on two issues.
    First, when the District of Columbia was envisioned, I 
think we have heard that indeed there was no precondition that 
we be excluded from the right to vote. It came about because of 
the unique circumstances and belief that those who had close 
proximity to Congress had an advantage that was not available 
to other citizens. The Internet, telephone, and telegraph have 
now made that, of course, an obsolete observation, and things 
have changed.
    I think that there is a real set of concerns that we should 
talk about, and that is with what has been proposed as the 
alternatives. And I would like to mention two alternatives and 
to speak about them. While both of them, I think, certainly 
represent good-faith contributions to a broader debate, they 
also pose major practical and legal hurdles that would need to 
be addressed, and it makes it impossible for the Leadership 
Conference to support either of them at this time.
    One alternative is to amend the Constitution to provide the 
District with congressional representation, and we would 
support that, of course, if the Federal courts deemed it 
absolutely necessary. But I think any fair interpretation of 
how constitutional changes are made in this country recognizes 
that the Constitution should never be amended unless it becomes 
absolutely necessary and unless we have exhausted all other 
means of achieving the objective that a constitutional 
amendment would address.
    Until such time as the Federal courts reject the 
constitutional interpretation that Professor Dinh, Professor 
Ken Starr, or others, myself included, support, it would seem 
that a constitutional amendment is premature.
    The second alternative is retrocession, returning the 
District to its former home in Maryland, and it is another 
legitimate effort, but we cannot support it. It would require 
the consent of Maryland, and achieving the political consensus 
necessary would be all but impossible. The consequences for 
both District and Maryland residents would be tremendous, and 
we would still need to amend the Constitution in order to 
repeal the 23rd Amendment. Given the drastic nature of this 
approach, we cannot support it.
    So, ultimately, we believe that the District of Columbia 
Voting Rights Act is the best approach for Congress to take on 
behalf of the residents of both the District and Utah. It 
presents a politically neutral approach; it has a solid chance 
of surviving constitutional scrutiny; and unlike the above 
options that I have mentioned, it can be passed and signed into 
law this year. The residents of the District and Utah have 
already waited far too long. We deserve better. That concludes 
my prepared remarks, and thank you for the opportunity.
    Chairman Lieberman. Thank you very much, Mr. Henderson. 
Excellent statement. Very thoughtful and very helpful to the 
Committee.
    Our next witness is Professor Viet Dinh, former Assistant 
Attorney General for Legal Policy, now a professor of law at 
the Georgetown University Law Center. Thanks for being here, 
and we welcome your testimony.

  TESTIMONY OF VIET D. DINH,\1\ PROFESSOR OF LAW, GEORGETOWN 
                     UNIVERSITY LAW CENTER

    Mr. Dinh. Thank you very much for having me, Mr. Chairman, 
Ranking Member Collins, and Senator Akaka. Great to see you 
again. Thank you for the honor of testifying today on S. 1257, 
which would provide the District with a voting seat in the 
House of Representatives.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Dinh appears in the Appendix on 
page 58.
---------------------------------------------------------------------------
    Since the House passed a similar measure last month, I know 
there has been a lot of debate, there has been a lot of high 
eloquence, there has been a lot of heated rhetoric both in 
favor of and in opposition to the bill facing this Committee 
and this body right now. I have neither the personal history 
nor the political expertise nor the eloquence to talk about the 
policy and politics, but I can say that having been at a number 
of these hearings, I have never heard such compelling testimony 
and such high eloquence as has been heard today. So I would not 
seek to even try to add my voice to the policies and politics 
of the measure. Rather, I will limit myself and my testimony to 
the central question that Senator Collins posed, which is the 
constitutionality of the measure facing you today.
    Even with respect to the purely legal aspect of this bill, 
there have been some overblown arguments, and so what I would 
like to do is take a step back and be as frank and as clear 
with you as possible on the competing constitutional arguments 
and look at the text, the precedent, and the history of our 
Constitution to see how these arguments can be reconciled 
because, like any good constitutional dispute, it is one of 
characterization. It is never easy to resolve these kinds of 
high constitutional principles; otherwise, we would not need 
the type of debate that we have today. Wade Henderson, Jonathan 
Turley, and I would be out of a job as constitutional law 
professors, and it would be a lot easier simply to pick up the 
Constitution and read it.
    The characterization here is between two provisions of the 
Constitution that seem at first glance to be in tension. 
Article I, Section 8, clause 17, the District Clause, gives 
Congress the power ``to exercise exclusive legislation in all 
cases whatsoever over the District.'' Exclusive legislation in 
all cases whatsoever. There are no limitations in that phrase. 
That is why the courts have characterized this as plenary and 
exclusive in power. And it makes good structural sense, also, 
because the District Clause works an exception to the system of 
federalism that defines our entire Constitution. Article I, 
Section 8, defines the powers of Congress, limited in their 
nature. Article I, Section 9, limits the power of Congress. 
Article I, Section 10, limits the power of State legislatures. 
That is the definition of our federalism.
    With respect to the District, Article I, Section 8, clause 
17, says that Congress has the complete, total power of the 
legislature. It has the power of Congress to legislate. It also 
has the power of any State legislature because there is no 
competing State legislature to exercise the traditional police 
power. That is why the courts have consistently interpreted 
this power to be plenary and exclusive; this phrase is majestic 
in its scope, sweeping and inclusive in character, and 
extraordinary and plenary.
    One would think, therefore, that this power, this clause, 
this sweeping, majestic, and broad interpretation would extend 
to granting something as basic as House representation. 
However, opponents of the bill also have a very good point and 
look to Article I, Section 2, which has already been mentioned, 
which says that representatives are to be chosen ``by the 
people of the several states.'' Because the District of 
Columbia is not a State, so goes the argument, Congress cannot 
change the Constitution by statute and allow District residents 
to vote for a representative.
    So when we are faced with two provisions of the 
Constitution that are seemingly in conflict as we are here, it 
is very easy for me to play the academic demagogue and say that 
one side has the trump card, that Judge Starr, Judge Wald, the 
ABA, and so many others are right and, therefore, Article I, 
Section 8, clause 17, trumps Article I, Section 2, or vice 
versa. But that would neither be a satisfying exercise for you 
all nor I think would it be a correct constitutional exercise 
in analysis. Rather, what I will try to do is simply back up 
and try to see how we can try to reconcile these two provisions 
in a logical, textually consistent manner that comports with 
our history and our Supreme Court precedents.
    And so when one does that, one sees--and I think it is my 
confident conclusion here--that Congress has ample authority to 
enact S. 1257, and let me explain why. I will start with the 
most difficult argument in opposition, that is, the text of 
Article I, Section 2, the Apportionment Clause, which says, 
again, ``The House of Representatives shall be composed of 
members chosen every second year by the people of the several 
states.''
    Let me go further and state very clearly that, in my 
opinion, the District of Columbia is not a State. Period. Full 
stop. So the Supreme Court was right in Hepburn v. Ellzey by 
saying that because the District is not a State, citizens of 
the District cannot sue under diversity's jurisdiction under 
Article III the citizen of another State. Likewise, I agree 
with the District of Columbia Circuit, in Judge Merrick 
Garland's excellent opinion in Adams v. Clinton, that said that 
District residents, not being citizens of States, do not have 
an inherent constitutional right to House representation.
    So when these cases, Hepburn and Adams, are cited in 
opposition to congressional authority to enact S. 1257, I think 
they really serve as red herrings. The reason why they serve as 
red herrings is because Article I, Section 2, says that 
representatives are to be chosen ``by the people of the several 
states.'' It does not say further that States and only States 
or citizens of States and nothing else. And so the argument in 
opposition, although seemingly textual in nature, is really one 
of negative inference from what is not said in the Constitution 
and not one of clear and authoritative, affirmative text. And 
it is the negative inference which normally would control but 
in this case must be reconciled with the express affirmative 
grant of plenary and exclusive power in all cases whatsoever 
under the District Clause, Article I, Section 8, clause 17.
    So I think a perfectly logical and textually consistent way 
to reconcile these provisions is to recognize that even though 
the District is not a State under the Constitution, that same 
Constitution grants Congress the power to treat the District 
like a State and give District residents the right to elect a 
representative under Article I, Section 2. And, not 
surprisingly, as Congressman Davis had pointed out, this 
reading is consistent with how the Supreme Court has treated 
similar questions.
    In Hepburn, for example, the case I cited earlier, even as 
Chief Justice Marshall decided that the District is not a State 
for diversity jurisdiction purposes, in the very next breath he 
noted that, ``This is a subject for legislative, not judicial 
consideration.'' Congress took up that invitation and passed a 
statute giving diversity jurisdiction, beyond just between 
citizens of different States, as the Constitution puts it, to 
``citizens of different States or citizens of the District of 
Columbia and any State or Territory.'' That is the law that the 
Court upheld in Tidewater, where three Justices, led by Justice 
Jackson, explicitly cited Justice Marshall's invitation to 
reaffirm Congress' power under Article I, Section 8, clause 17, 
to expand the rights of District residents to sue under 
diversity jurisdiction.
    Now, the courts have employed similar reasoning to uphold 
treatment of District residents like State residents under 
constitutional provisions for tax apportionment and the 16th 
Amendment; international treaties, the Commerce Clause; the 
Sixth Amendment right to a jury trial; and State sovereign 
immunity under the 11th Amendment--even though each and every 
single one of these provisions in our Constitution refers only 
to States. The court followed the same kind of logic of 
reconciliation of the constitutional text as I have outlined 
here.
    Finally, let me spend a brief minute on the relevant 
historical record. As has been noted before, in 1788 and 1789, 
Maryland and Virginia, respectively, ceded land to the U.S. 
Congress in order to build this capital. Congress accepted that 
land in the Residence Act of 1790 and said point-blank, ``It is 
hereby accepted.'' An unbroken line of Supreme Court precedents 
has held that the act of acceptance constituted the completion 
of the cession.
    But Congress did not stop there. It provided that the laws 
of Maryland and Virginia during the transition period would 
operate in the 10-year period until 1800, when Congress would 
assume legal jurisdiction, even though it had already assumed 
title and jurisdiction in 1790 with the acceptance of the 
cession.
    During that period, District residents had a right to vote. 
It is important to remember that the cession was completed in 
1790, and so the only reason those District residents had the 
right to vote under Maryland law or under Virginia law is 
because Congress granted that right to vote in the Residence 
Act itself. That terminated in 1800 when Congress assumed full 
jurisdiction. My contention is that what Congress implicitly, 
quietly, by omission, took away in 1800, it had granted in 1790 
and can re-grant now in 2007.
    I know Mr. Turley has cited to a case of 1960 called 
Albaugh v. Tawes that holds that District residents do not have 
residual rights of citizenship in Maryland and Virginia and so, 
therefore, do not have an inherent right to vote in those 
elections. I think that case, rather than contradicting the 
argument, actually affirms it because that case stands for the 
proposition that after the cession of the land from Maryland 
and Virginia, the rights as citizens of those States ended. And 
so Congress, by virtue of the Residence Act of 1790, 
affirmatively used its authority in order to grant back that 
residual right. So in that sense, I would urge you to look at 
the historical evidence and treat this as the Framers treated 
it, how to reconcile these various provisions and conclude in a 
consistent, textual, perfectly logical, and historically 
correct manner that Congress has the authority to grant House 
representation under Article II, Section 8, clause 17, 
notwithstanding Article I, Section 2. Thank you very much.
    Chairman Lieberman. Thanks very much, Professor Dinh. This 
has been an extraordinary morning of testimony. I was actually 
thinking, considering Professor Henderson and now you, I 
remember once years ago that a friend of mine who is a lawyer 
in Connecticut said it was about 15 years after he got out of 
law school that he felt ready to go to law school and get 
something out of it. And I feel that way this morning.
    [Laughter.]
    Continuing at this high level of presentation, Professor 
Turley, thank you for being here. You are a distinguished 
member of the faculty at the George Washington University Law 
Center.

TESTIMONY OF JONATHAN R. TURLEY,\1\ SHAPIRO PROFESSOR OF PUBLIC 
   INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Turley. Thank you, Chairman Lieberman, Ranking Member 
Collins, Senator Warner, my Senator, and Senator Akaka. Thank 
you for the honor of addressing you today. I hope that we start 
out in consideration of the Senate bill with an understanding 
of people of good faith, that this is not a debate between 
those who favor votes for District residents and those who want 
to keep them without a vote. The fact that the District 
residents are not voting citizens in terms of Congress is a 
terrible historical mistake and one that should be corrected. 
This is and has always been not a question of ends but of 
means. In a Madisonian system, it matters as much how we do 
something as what we do, and sometimes that principle imposes a 
burden that is very hard to shoulder.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Turley appears in the Appendix on 
page 78.
---------------------------------------------------------------------------
    I should thank my very good friend, Eleanor Holmes Norton, 
for her introduction. I thought she was introducing Dr. Evil, 
but----
    [Laughter.]
    Apparently she was referring to me. I feel like when I went 
with my late father to an Irish wake decades ago, and the first 
toast that was given was to the body at the table, and the 
people said, ``We want to thank Tommy for bringing us 
together.'' I now know how Tommy feels.
    But what I am here to suggest is that there are many ways 
to address historical wrong. But it is not always easy, and, in 
fact, convenience has always been the enemy of principle. And 
it causes me great regret that I have to say this is the wrong 
means. I do not share the view of my friend, Viet Dinh, that 
this is a close question--there are close constitutional 
questions--or my friend, Professor Henderson. I do not believe 
this is one of them. I also do not believe that this is 
properly viewed as a civil rights matter.
    This struggle, which has been going on for 4 years now, is 
to give District residents partial representation that could be 
taken away at a whim and a moment of Congress. I do not 
consider that a civil rights victory. That is like allowing 
Rosa Parks to move halfway up the bus. What the District 
residents deserve is full representation and done in a 
constitutional way so it could never be taken away, so that it 
extends to them as citizens and remains with them. And that is 
the reason why I believe that this bill is the most 
premeditated unconstitutional act of Congress in decades.
    I believe it is my duty to say that. I have submitted 60 
pages of testimony so there can be no question about the 
historical or textual record in this case.
    The status of the residents of the District of Columbia was 
debated. It was as controversial in the 18th Century as it is 
today. It was not an oversight. It was not forgotten. It was a 
controversy. It was referred to before the ratification of the 
Constitution and was referred to thereafter almost on an annual 
basis as a point of great contention.
    Now, my friend, Delegate Norton, said that it is a slander 
upon the Framers to say that they would do this. Well, as 
someone who also teaches torts, I know that the defense of 
defamation is always truth. And I believe that this is not a 
slander upon the Framers. It is the truth. Now, you may think 
that the Framers made a terrible mistake, but they made the 
decision.
    Now, how do we know that? Well, first of all, we can start 
with the text. That is usually where constitutional analysis 
begins and ends. The text in Article I, Section 2, is a model 
of clarity. It refers to ``representatives of the several 
states.'' The District Clause refers to inherent powers of the 
U.S. Congress. It refers to your ability to dictate conditions 
within the District of Columbia. That distinction of your 
jurisdiction within the District was referred to before 
ratification as a guarantee to those who were uncomfortable 
about the capital city, that it would not extend beyond the 
borders of the District.
    Yes, you can tax. Yes, you can impose all types of 
programs. You can have the District residents pay taxes or you 
can have them pay no taxes. Why? Because within those borders 
you do have exclusive control. They referred to the exclusive 
authority over cases. Over cases. It was a very practical 
provision giving jurisdiction of Congress to determine what 
will happen within the capital city.
    The context, as I have laid out in the Constitution, 
reinforces this view. The District Clause is in the same clause 
as the power that you have over forts in Federal territories. 
It was meant to refer to your inherent authority. In fact, it 
was said that your authority over the District is a like 
authority that you exercise over forts. I do not understand why 
that language is not perfectly clear and controlling.
    Now, the original purpose of Article I, Section 2, is also 
clear. As the Chairman stated, it was indeed the result of the 
Connecticut Compromise, something your State can be very proud 
of. But it was a vital part. It is called the Composition 
Clause, and who voted it in Congress was vitally important to 
the Framers. They were obsessed with the authority of States, 
and many of them were uncomfortable with the creation of a 
Federal city, of a capital city.
    The Composition Clause was the structural clause of Article 
I. The District Clause is not part of that. It is part of those 
enumerated powers that go from post offices to forts in Section 
8.
    Not only was this discussed, it was discussed, for example, 
in the 3rd Congress where another great Connecticut 
representative, Representative Swift, actually a few years 
after the Constitution passed, objected to a non-State member 
voting in Congress, and everyone agreed just a few years 
afterward that, in fact, only members of the States could vote 
in Congress.
    But the original understanding I think should carry this 
effort. The idea that this was an oversight is irrefutably 
untrue because we have the record. You can read things like 
``Federal Farmer'' from January 1788, which talks about how 
obnoxious it was that the city would be created without the 
guarantees of the ``principles of freedom.'' The status of the 
residents was known. What was not discussed was the details, 
and the reason it was not discussed is because it was being 
left to Congress. They did not have to discuss it. It would be 
left to Congress. But the status of the District was discussed. 
It was created for the purpose of being a non-State entity 
under the exclusive control of Congress.
    During ratification, before the ratification of the 
Constitution, many people objected, including Framers. 
Alexander Hamilton introduced an amendment specifically to 
change the clause we are talking about. The amendment that he 
offered, July 22, 1788, would have read, ``The inhabitants of 
said District shall be entitled to the like essential rights as 
the other inhabitants of the United States in general.'' It 
would have addressed this very issue. It was rejected. So was 
another amendment in that State.
    In one of the States, there was actually a proposal to do 
what this bill does--to give the District a vote in the House 
of Representatives. It was raised repeatedly, and it lost.
    Now, this point is emphasized by Edmund Pendleton, who was 
the President of the Virginia Ratification Convention. When he 
was asked about this District, the concern was not the status 
of the residents. Many people believed that the District 
residents were getting a great economic advantage by being in 
the capital city. And the biggest concern was that they would 
be too powerful. Pendleton stood up and said, ``No, you do not 
understand how we handle this.'' He correctly tied the 
Composition Clause to the District--I should say he was 
primarily talking about the Composition Clause, not the 
District. But he said that the composition of Congress prevents 
States from being roughed up, essentially, by this new Federal 
Government. He said the reason is because you cannot have a 
Member of Congress without a State legislature. So no State 
legislature means no Member of Congress, and no Member of 
Congress means no Congress. He directly tied the fact that they 
did not have to fear because of the Composition Clause.
    The retrocession movement, as I have laid out, brought this 
even to a greater level of clarity. The retrocession movement 
began almost immediately upon ratification. The reason is that 
Virginians did not like their status. And so Virginians came 
forward and said: We hate this; we want a vote in Congress. And 
various people at that time agreed with them and referred to 
keeping the people in this degraded condition and laws not made 
of their own consent and being vassals of Congress. It is a 
debate that you could virtually take from today's arguments, 
but it occurred just after the ratification of the Constitution 
and continued that controversy.
    Ultimately, Virginia did retrocede. At the time, the 
District of Columbia was given the opportunity to retrocede. 
There was a similar movement, particularly in Georgetown. The 
residents chose not to, and reports of the period said that 
residents had decided that they would prefer to stay within the 
District despite the fact that they could not vote.
    Now, I have in my testimony laid out responses to my 
friend, Viet Dinh. We obviously have a good-faith disagreement 
here. But I want to emphasize that, as moving as the testimony 
has been, please, do not dismiss what you are about to do in 
terms of its significance. You are about to manipulate the size 
of Congress, create districts on your own authority, out of 
what is a Federal enclave. That can be done for a number of 
Federal enclaves. Puerto Rico could claim six seats. There are 
huge territories with a huge number of citizens. Millions of 
citizens are in the same status. Do not assume that a future 
Congress will not take this opportunity to manipulate those 
numbers further.
    I also want to emphasize that the suggestion that this 
interpretation could not add a seat in the Senate I find 
baffling. There is no limitation in the language of the 
Constitution that would stop the same argument from being used 
to add a Member of the Senate.
    Now, let me close, if I may, by telling you my favorite 
story that my Dad always told me when I was about to do 
something that he disagreed with. And he always used to tell me 
the same story over and over again to beat it into my head. And 
he told me about this guy who was walking down the street and 
saw in the night a man underneath a lamp post, and he was 
looking for something. And so the man got down on his knees. He 
said, ``What are you looking for?'' He said, ``I dropped my 
wedding ring.'' And so he looked for about an hour all around 
this lamp post, and he finally turned to the guy and said, 
``You know, Mister, are you sure you dropped it here? Because I 
cannot find it.'' He said, ``Oh, no, no, no. I did not drop it 
here. I dropped it down the street, but the light is better 
here.''
    And the point is that sometimes we do things, we look in 
places because they are easier. This bill is an easy place to 
look, but it is the wrong place. The vote of the residents was 
lost elsewhere. I have suggested ways that we can get it back, 
but I must respectfully suggest this is not one of those ways. 
Thank you.
    Chairman Lieberman. Thanks, Professor Turley. A provocative 
last witness for sure.
    We have a time problem. I am going to ask one question, and 
then--yes, Senator Akaka?
    Senator Akaka. May I ask that my full statement and 
questions be included in the record.
    Chairman Lieberman. Without objection. I think Senator 
Collins is going to have to do that as well to get to the vote 
and then to go on to another meeting.
    [The prepared statement of Senator Akaka follows:]

                  PREPARED STATEMENT OF SENATOR AKAKA

    Mr. Chairman. I want to thank you for holding this hearing. It's a 
good opportunity to provide some clarity on a complicated but 
critically important issue.
    We are here today to discuss a fundamental right of all Americans--
the right to be represented by a voting member of Congress. As we all 
know, this is a right the District of Columbia currently does not have. 
Constitutional scholars, fellow members of Congress, civil rights 
advocates, and citizens of the District of Columbia will testify this 
morning, providing much needed perspective on the importance and impact 
of voting rights legislation for DC.
    I do not take this issue lightly. Hawaii was just a territory when 
I was born. Almost 50 years ago Hawaii became the 50th State in the 
Union and was only then offered full rights and privileges, including 
full representation in Congress. So, I understand the struggle and 
challenges facing the citizens of the District.
    Three amendments to the Constitution deal specifically with the 
extension and protection of voting rights for Americans. More than 
500,000 citizens in our Nation's capital--some here in this room--pay 
Federal taxes, fight in our military, and defend our Constitution. 
However, because they live inside the District and not in a State, they 
are denied a full voting member of the House.
    Some argue that the 23th Amendment provides Congress the authority 
to give DC voting rights. Others argue that Article 1 of the 
Constitution prevents it saying it applies only in areas defined as a 
``State.'' The courts have supported actions that treat the District as 
a State in other matters. Why not this one?
    I am not an attorney or a judge. Where the law is said to be 
ambiguous, we should seek clarification. As a legislator for more than 
30 years, the separation of powers is clear to me. We should not 
attempt to preempt the judgment of the Courts. The Judicial Branch 
should have the opportunity to interpret the legislation. Today is not 
the first day of this discussion and certainly not the last. But it is 
a clear and decisive step forwards. And I look forward to taking action 
on this matter.

    Chairman Lieberman. Let me try to summarize, at least as I 
heard it, what Professor Turley said, and then ask for a 
response from Mr. Henderson and Mr. Dinh.
    Everybody agrees on the panel, as Mr. Turley said, that it 
is wrong that the residents of the District are denied voting 
representation in Congress. So the question is how to right 
that wrong.
    Now, those of us who are sponsoring this legislation--
actually, I speak for myself--find that the Constitution is, at 
best, unclear here. I do not see anything in the Constitution 
that would prohibit us from doing what we are doing. And I take 
Mr. Henderson's point that amending the Constitution ought to 
be the last resort, and it ought to be only done in this case 
if there is an adverse decision of the Supreme Court which says 
you just did something in giving the District residents the 
vote that is unconstitutional, you have to amend the 
Constitution to do that.
    In some ways, Professor Turley is saying the history that 
you have cited really gives a clearer message than the 
Constitution in the two relevant clauses, and therefore, you 
cannot do this.
    I want to ask Mr. Henderson and Mr. Dinh to just respond 
briefly, if you can, to that and then more extensively on the 
record.
    Mr. Henderson. Well, thank you Senator. I certainly 
associate myself with your analysis, which is to say that 
amending the Constitution is a step of last resort. And until 
such time as Congress enacts legislation which is ultimately 
ruled unconstitutional, I think we have to take the legislative 
step first as an exhaustive requirement to try to accomplish 
the objective that I think we share in common.
    Second, as my colleague Professor Dinh has cited, Congress 
did both grant and subsequently remove the power of the 
District of Columbia to exercise a vote. They did so for a 
variety of reasons. They treat the District as a State for 
certain Federal programs and in certain instances, and that, it 
seems to me, makes clear at least that there is a plausible 
argument in favor of Congress' ability to enact this 
legislation. Let the courts ultimately decide. And I think that 
is really the benefit of the approach, the bipartisan approach, 
that is being taken with this important bill.
    Chairman Lieberman. Thank you. Professor Dinh.
    Mr. Dinh. Very quickly, on both halves of your question, 
Mr. Chairman, on your role as a conscientious legislator, I 
think you have a duty to ascertain the constitutionality in the 
first instance of your act, but also to make a predictive 
analysis as to what the courts would do. Because you are not 
reckless, you recognize the power of judicial review, as do I. 
I am not here to offer up my head for nine members of the 
Supreme Court in order to declare that I am categorically 
wrong. In that sense, I am very confident to advise you that 
the Congress does have this power, and if challenged, which is 
unquestionable, the bill will sustain the Supreme Court review 
based upon the long history of precedent that I, Tom Davis, 
Wade Henderson, and so many others have recounted, a precedent 
that is unbroken in the relevant analysis.
    With respect to the provocative, lengthy, and very eloquent 
analysis of history that Professor Turley has pointed out, I 
can only say that it is interesting but largely irrelevant 
because whether the Framers debated whether or not the District 
residents have the vote, just as we have today, does not answer 
the question whether or not Congress can act under the 
Constitution to grant that vote. As a matter of fact, much of 
that history, as Mr. Turley pointed out, rests with the final 
argument that Congress can decide. That is exactly what James 
Madison said, as I cited in my paper. Let Congress decide if 
the States that ceded the land want to protect their citizens; 
then Congress can protect it--which is exactly what they did in 
1790 to 1800. There is little doubt in my mind that if 
Congress, in 1801, passed this measure that we are considering 
today, it would have had the constitutional authority to do so, 
and we would not be sitting here. They did not. That is why we 
are sitting here, and the constitutional analysis of 
congressional authority does not change.
    Chairman Lieberman. Thanks, Professor Dinh.
    Professor Turley, I want to apologize to you because I have 
got to run before the vote runs out.
    Mr. Turley. No apology needed.
    Chairman Lieberman. You are right. Like the late Tommy at 
the wake, you brought us all together.
    [Laughter.]
    We are going to leave the record of this hearing open for 
10 days for additional statements. Members of the Committee, I 
know, want to submit questions to you. We are going on the 
Memorial Day recess at the end of next week. We will come back 
early in June, and it is my intention to bring this measure 
before the full Committee for a markup sometime hopefully in 
the first couple of weeks of June. But it gives us some time to 
consider all the arguments.
    I thank you very much. It has been a very important 
morning, and I remain committed to moving this legislation 
forward. Thank you all. The hearing is adjourned.
    [Whereupon, at 12 p.m., the Committee was adjourned.]


                            A P P E N D I X

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