    [Senate Hearing 110-440]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 110-440

      ENDING TAXATION WITHOUT REPRESENTATION: THE CONSTITUTIONALITY OF S.
                                      1257
    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 23, 2007

                                   __________

                              Serial No. J-110-38

                                   __________

             Printed for the use of the Committee on the Judiciary

                         U.S. GOVERNMENT PRINTING OFFICE

    43-232 PDF                 WASHINGTON DC:  2008
    ---------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing
    Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
    DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP,
    Washington, DC 20402-0001

                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
    JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
    HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
    DIANNE FEINSTEIN, California         JON KYL, Arizona
    RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
    CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
    RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
    BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
    SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
                Bruce A. Cohen, Chief Counsel and Staff Director
          Michael O'Neill, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................     1
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     7
    Kennedy, Hon. Edward M., a U.S. Senator from the State of
      Massachusetts, prepared statement..............................   134
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
        prepared statement...........................................   135

                                   WITNESSES

    Bress, Richard P., Partner, Latham & Watkins, LLP, Washington,
      D.C............................................................    29
    Cannon, Hon. Chris, a Representative in Congress from the State
      of Utah........................................................     4
    Elwood, John P., Deputy Assistant Attorney General, Office of
      Legal Counsel, Department of Justice, Washington, D.C..........    16
    Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
      District of Columbia...........................................     8
    Ogletree, Charles J., Jesse Climenko Professor of Law, Harvard
      Law School, Cambridge, Massachusetts...........................    25
    Shurtleff, Mark L., Utah Attorney General, Salt Lake City, Utah..    13
    Thomas, Kenneth R., Congressional Research Service, Washington,
      D.C............................................................    27
    Turley, Jonathan, Professor, George Washington University Law
      School, Washington, D.C........................................    23
    Wald, Patricia, former Chief Judge, U.S. Court of Appeals for the
      District of Columbia Circuit, Washington, D.C..................    18

                             QUESTIONS AND ANSWERS

    Responses of Richard P. Bress to questions submitted by Senators
      Feingold, Coburn...............................................    42
    Responses of John P. Elwood to questions submitted by Senator
      Coburn.........................................................    58
    Responses of Kenneth Thomas to questions submitted by Senator
      Coburn.........................................................    66
    Responses of Jonathan Turley to questions submitted by Senator
      Coburn.........................................................    72
    Responses of Patricia Wald to questions submitted by Senator
      Coburn.........................................................    84
    Questions submitted to Charles Ogletree by Senators Coburn and
      Feingold (Note: At the time of printing, after several attempts
      to obtain responses to the written questions, the Committee had
      not received any communication from the witness.)..............    86

                           SUBMISSIONS FOR THE RECORD

    Bress, Richard P., Partner, Latham & Watkins, LLP, Washington,
      D.C., statement................................................    88
    Cannon, Hon. Chris, a Representative in Congress from the State
      of Utah, statement.............................................   115
    DC for Democracy, Keshini Laduwahetty, Chair, Karen D. Rose,
      Chair, Committee on Democracy & Voting Rights, DC for Democracy
      and James H. Dean, Chair, Democracy for America, Washington,
      D.C., letter...................................................   124
    Democracy for Utah, Carrie Ulrich, President and Kristine Griggs,
      Vice President, letter.........................................   125
    Elwood, John P., Deputy Assistant Attorney General, Office of
      Legal Counsel, Department of Justice, Washington, D.C.,
      statement......................................................   127
    Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
      District of Columbia...........................................   143
    Ogletree, Charles J., Jesse Climenko Professor of Law, Harvard
      Law School, Cambridge, Massachusetts, statement................   147
    Shurtleff, Mark L., Utah Attorney General, Salt Lake City, Utah,
      statement......................................................   152
    Stand Up! for Democracy in DC Coalition, Washington, D.C.,
      statement......................................................   159
    Strauss, Paul, a U.S. Senator from the District of Columbia
      (Shadow), statement............................................   164
    Thomas, Kenneth R., Congressional Research Service, Washington,
      D.C., statement................................................   175
    Turley, Jonathan, Professor, George Washington University Law
      School, Washington, D.C., statement............................   184
    Wald, Patricia, former Chief Judge, U.S. Court of Appeals for the
      District of Columbia Circuit, Washington, D.C., statement......   251
    Washingtonpost.com, Mary Beth Sheridan, May 28, 2007, article....   261

      ENDING TAXATION WITHOUT REPRESENTATION: THE CONSTITUTIONALITY OF S.
                                      1257

                                  ----------

                            WEDNESDAY, MAY 23, 2007

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                       Washington, D.C.
        The Committee met, Pursuant to notice, at 1:32 p.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Russell D.
    Feingold, presiding.
        Present: Senators Leahy and Hatch.

     OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
                      FROM THE STATE OF WISCONSIN

        Senator Feingold. I call the committee to order.
        Good afternoon, everybody. We will start the hearing and go
    as far as we can, then there are going to be two or three
    votes, so we will recess the committee and come back as soon as
    I can at that point. Good afternoon, Mr. Chairman.
        Two hundred and twenty years ago this September, in
    Philadelphia, Pennsylvania, our Nation's Founders adopted the
    Constitution of the United States. We are here today to
    consider whether that document, perhaps the greatest testament
    to democracy and freedom in human history, prevents the elected
    legislature of the people of this country from granting the
    most basic right of citizenship to the people of the District
    of Columbia.
        While I understand the textual and historical arguments
    made by those who believe that right can only be granted
    through a constitutional amendment, I simply cannot agree that
    our historic charter compelled that result.
        We are fortunate to have with us today distinguished
    experts on constitutional law to give this committee a full
    airing of the issues raised by S. 1257, the District of
    Columbia House Voting Rights Act of 2007. We look forward to
    their testimony.
        The bill would increase the size of the House of
    Representatives by two seats, granting one of those seats to
    the District of Columbia and the other to Utah, which fell just
    857 people short of picking up a fourth seat in the
    reapportionment that took place after the 2000 Census.
        A number of hearings have been held on the bill over the
    past few years, including just last week in the Homeland
    Security and Governmental Affairs Committee, which is the
    committee of jurisdiction in the Senate.
        Senator Leahy and I decided to hold this hearing because we
    believe that it is important for the Senate Judiciary Committee
    to carefully consider the primary argument raised by the
    opponents of S. 1257, that the bill is unconstitutional.
        The two sides of this constitutional debate are well-known.
    Proponents of the bill believe that the District clause of
    Article I, Section 8 gives Congress the power to grant a vote
    in the House to residents in the District of Columbia, while
    opponents believe that doing so would violate what is sometimes
    referred to as the ``Composition Clause'' of Article I, Section
    2, which provides that the House of Representatives shall be
    composed of members chosen by ``the people of the several
    States.''
        Proponents note that the courts have interpreted the
    District clause quite broadly and have upheld congressional
    enactments that treat the District as a State and its citizens
    like citizens of States for various purposes.
        Opponents argue that the plain language of the Constitution
    in this context leaves no doubt that the Framers meant what
    they said when they said that only people living in ``States''
    could be represented in Congress.
        This is obviously not an easy question of constitutional
    interpretation. There is no slam dunk here, but the answer is
    of enormous consequence. Over half a million people in the city
    where we now sit are currently unrepresented in Congress. They
    pay taxes at the second-highest rate per capita of any State in
    the Nation. They and their sons and daughters, fathers and
    mothers, defend our country in war.
        The decisions of their local elected representatives are
    subject to a congressional veto, and they live in the capital
    city of the greatest democracy in the world. Yet, they have not
    even one voting representative in even one House of the
    legislature that governs them. In some ways, it is as if the
    American Revolution passed them by. That is a fundamental
    injustice.
        We in Congress have a duty to correct that injustice, and
    now we have a chance to do so because a political ``perfect
    storm'' seems to be upon us, allowing partisan concerns to take
    a backseat, as they should, to granting fundamental rights and
    fulfilling the promise of democracy for the residents of the
    District of Columbia.
        No person will be hurt, no group will be disadvantaged if
    we pass this bill. But hundreds of thousands of people will
    continue to be disadvantaged if we fail to act, simply because
    they live in the Nation's Capital.
        In my view, in light of the historic wrong that this bill
    will correct, the case for its constitutionality is certainly
    strong enough to justify enacting it and asking the Supreme
    Court to make the final decision.
        The Constitution grants Congress the power of ``exclusive
    legislation in all cases whatsoever'' over the District. It
    seems odd that we cannot use that authority to ensure that this
    government's just powers are derived from the consent of the
    governed.
        The other fundamental document of our founding, the
    Declaration of Independence, laid out a list of grievances
    against the King of Great Britain, including the following:
    ``He has refused to pass other laws for the accommodation of
    large districts of people unless those people would relinquish
    the right of representation in the legislature, a right
    inestimable to them and formidable to tyrants only.''
        Those who rely on constitutional arguments to oppose this
    bill should ask themselves not only what the Framers thought at
    the time, but what they would think today if they were faced
    with the question of whether their handiwork should be used to
    prevent Congress from granting over half a million people the
    most basic right in a democracy, the right of representation in
    the legislature, a ``right inestimable to them and formidable
    to tyrants only.'' I think the answer to that question is
    obvious.
        Now let me turn to the Chairman of the full committee, my
    friend Senator Leahy.

      STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
                            STATE OF VERMONT

        Chairman Leahy. Thank you, Mr. Chairman. I appreciate you
    holding this hearing, and I am proud to be a co-sponsor with
    you of this legislation. As many people know, I have taken this
    position consistently all the years I have been in the Senate.
    The District of Columbia and the State of Vermont have roughly
    the same, within 10 percent, population.
        I think last year, if you will remember, Mr. Chairman, we
    were sitting here and we were having hearings on the Voting
    Rights Act. We came together, Republicans and Democrats, and we
    passed that, something of the extension so that we could make
    sure that the fundamental right to vote of all Americans was
    protected.
        I wrote a letter to my four grandchildren at the time and
    told them this was a gift to them, that all four will have
    their rights protected when they are old enough to vote.
        The DC Voting Rights bill, I think, falls in that same
    category. It was glad to see Congresswoman Eleanor Holmes
    Norton, who is a friend of longstanding. She has testified here
    before. It is interesting. As a young lawyer, she worked for
    civil rights and voting rights around the country. She then
    comes home. You helped get a lot of people the right to vote.
    Unfortunately, you could not vote yourself, even though you are
    such a strong voice in the District.
        I see another friend, retired Chief Judge Patricia Wald, in
    the audience. In her thoughtful testimony she highlights the
    fact that Congress has a greater power to confer Statehood, and
    the District certainly contains a lesser one: the power to
    grant District residents voting rights in the House.
        Congress exercised that authority in the past without rigid
    adherence to constitutional text. We granted voting rights to
    Americans abroad. They are able to vote in their last stated
    residence, regardless of whether they are citizens of that
    State, are now paying taxes in that State, or even have an
    intent to return to the State.
        Congress has repeatedly used the District of Columbia as a
    State for other purposes. In the Judiciary Act of 1789, it made
    clear that Federal courts may hear cases between citizens of
    different States, and included the District for that.
        We have allowed the District to be treated as a State for
    purposes of congressional power in regulating commerce. The
    Sixteenth Amendment grants Congress the power to directly tax
    incomes without apportionment among the several States, but
    includes, of course, the District.
        In 2005, President Bush praised the Iraqi people for
    exercising their democratic right to vote and said that by
    participating in free elections the Iraqi people firmly
    rejected the anti-democratic ideology of the terrorists. They
    demonstrated the kind of courage that is always the foundation
    of sound government.
        Now, the President spends a fair amount of time here in
    Washington, DC. I wish he would speak just as enthusiastically
    about the people who live here. The United States is the only
    democracy in the world that denies a portion of its citizens
    full representation, the only democracy in the world.
        The administration contends we lack authority for this.
    Well, the purpose of the District clause in the Constitution
    was to ensure Federal authority over the Nation's Capital, not
    to deprive citizens living there their rights of citizenship.
        The founders established a Republican form of government.
    That system has been perfected for more than 200 years. I find
    disappointing the administration's threat to veto this
    legislation. Sometimes I think they only read Article II that
    establishes the exclusive and all-encompassing power of the
    government and the President. I am glad that they at least
    acknowledged it in Article I when it comes to the District
    clause.
        So I have a much longer statement and I will put it in the
    record. There are certain things where the time has come. Just
    like the voting rights extension, the time has come for this,
    too.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        Senator Feingold. Thank you so much, Mr. Chairman, for your
    leadership of the committee, and in particular your long-time
    commitment to this issue. Thank you for helping us open up the
    hearing.
        We will now turn to our first panel, but before we proceed
    further I understand that Mr. Paul Strauss, who is the elected
    shadow Senator for the District of Columbia, is with us today.
        Senator Strauss, if you can stand and be recognized at this
    time. Thank you very much for being here.
        Now to our panel. Our first witness is Representative Chris
    Cannon. He has represented the Third District of Utah in the
    House since 1997. He is currently the Ranking Member of the
    Subcommittee on Commercial and Administrative Law of the House
    Judiciary Committee. He earned his undergraduate and law
    degrees from Brigham Young University.
        Mr. Cannon, thank you for joining us today. You may
    proceed.

     STATEMENT OF HON. CHRIS CANNON, A REPRESENTATIVE IN CONGRESS
                         FROM THE STATE OF UTAH

        Representative Cannon. Thank you, Mr. Feingold. I
    apologize, Mr. Chairman, for being late here. We had a vote on
    this side. If it is agreeable, we also have an ongoing hearing
    with Ms. Goodling on the Senate side, which is part of the
    subject matter of the subcommittee that I rank on over there.
    So if it is acceptable, I would like to be able to slip out
    after my testimony.
        Thank you for inviting me to speak today about the District
    of Columbia House Voting Rights Act of 2007. I strongly support
    this legislation because it would correct two injustices. It
    would provide a long-overdue voting representative for
    residents of the District of Columbia and would restore
    adequate representation for residents of the State of Utah.
        I appreciate that some have questioned whether providing
    District residents the fundamental right to vote is within
    Congress's power, but I do not share their doubts. There is no
    historical basis for concluding that the framers intended to
    disenfranchise residents of the Nation's Capital. In my view,
    the District clause of the Constitution gives Congress the
    necessary authority to restore voting rights to those
    residents.
        Although the crux of the debate regarding this legislation
    focuses on the D.C. portion of the bill, let me, first, speak
    about the Utah portion. Utah is in the unique position to
    remedy a wrong imposed on it after the 2000 census.
        Utah lost out on the fourth seat because of a Census Bureau
    decision to count, and enumerate to their respective homes,
    States' government employees residing temporarily abroad, but
    not to count similarly situated missionaries.
        Had the Bureau either not counted any Americans residing
    temporarily abroad or counted all such Americans and not just
    those employed by the Federal Government, Utah would have been
    awarded a fourth seat after the 2000 Census.
        This legislation puts Utah on a path to remedy a fraud
    decision, although I have some questions about the language in
    the House legislation that mandated an at-Large seat for Utah.
    I want to be clear that those concerns were not regarding the
    constitutionality of an at-Large seat, but rather its effects
    on the State's prerogatives and the historic role of the State
    in the apportionment.
        I appreciate the deference the Senate bill has shown the
    State of Utah and look forward to working with you as this
    language of the legislation moves forward.
        In order to understand that the District portion of this
    legislation, it is important to take a historical perspective.
    At the time of our Nation's founding, the Framers provided for
    a Federal District to house the seat of the Federal Government.
    This was done to ensure that the Nation's Capital would be
    insulated from undue influence from the States and that its
    security would be not left in the hands of any one State.
        Denying District of Columbia residents the right in vote in
    elections for the House of Representatives was not necessary,
    or even relevant, to further these purposes. And contrary to
    the claims of some, there is no indication in the ratification
    debates that the Framers intended such disenfranchisement.
        In fact, there was no discussion at all during the
    constitutional convention, and almost none in the State
    ratification debates as to the voting rights of the new
    District residents, likely because it was assumed that the
    States donating the land for the District would provide for the
    voting rights of the residents of the ceded land.
        Indeed, from 1790 to 1800, District residents continued to
    vote in congressional elections in Maryland and Virginia. It
    was not until 1800 when the District became subject to complete
    Federal control that the residents of the District lost their
    voting rights. The Framer's idea which focused closely on this
    issue may well have stemmed from the fact that there was no
    District of Columbia at the time the Constitution was ratified.
        At that time, the Framers had prescribed only the
    District's purpose and the limitations on its geographic size.
    Even if location had not been selected, many municipalities,
    including Trenton, New Jersey, Yorktown, Virginia, and Reading,
    Pennsylvania vied for the honor. It was not until Congress
    passed the Residence Act that the site that is now the District
    of Columbia was selected as the seat of the Federal Government.
        For all the Framers knew, the Capital would be located in
    the middle of an existing State, thereby allowing the residents
    of the District to continuing voting in that State, as
    residents of Federal enclaves do today.
        Although they did not perceive a need explicitly to protect
    District residents' voting rights, the Framers did authorize
    Congress to exercise exclusive legislation in all cases
    whatsoever over the District.
        As several constitutional scholars have observed, Congress
    has used its power under this clause numerous times to treat
    the residents of the District as though they were residents of
    a State, and that has been true even in instances where the
    Constitution gives rights or imposes responsibilities only on
    citizens of States.
        Opponents of this legislation argue, however, that the
    Framers meant to exclude District residents from voting by
    providing, in Article I, Section 2, that Members of the House
    are chosen by the people of the several States.
        But that language was not chosen because of an intention to
    deny democracy to residents of the Nation's Capital. Rather,
    the ratification debates indicate that this language resulted
    from two decisions made in the course of those debates: the
    decision that the House would be elected by the people of the
    several States as opposed to by State legislatures, and the
    decision to allow voting qualifications to be set by the State
    rather than at the Federal level.
        At no point during the debates over these issues did anyone
    mention the residents of the newly conceived Federal District,
    let alone suggest that they would be deprived of the
    fundamental individual right to voting for representation.
        In short, there is no historical basis for reading into the
    clause a limitation that would prevent Congress from ensuring
    adequate representation for all of the Nation's citizens. This
    act ensures adequate representation both in Utah and in the
    District of Columbia, and it does so constitutionally. I,
    therefore, urge you to join me in supporting it.
        Senator Feingold. Thank you very much, Representative.
        I see my colleague, a former Chairman of the committee and
    distinguished Senator from Utah, Senator Hatch, is here, and I
    turn to him now.

    STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
                                OF UTAH

        Senator Hatch. Well, thank you, Mr. Chairman. I want to
    thank you and Chairman Leahy for scheduling this hearing so
    promptly, and for you chairing this hearing today. You are both
    co-sponsors of S. 1257, the District of Columbia House Voting
    Rights Act of 2007.
        I also want to thank Senator Lieberman, who chairs the
    Homeland Security and Government Affairs Committee, who
    introduced the bill and held a hearing on this less than 2
    weeks ago.
        I am happy to welcome my colleagues from Utah. I am really
    pleased to have you here, and my dear friend, Eleanor Holmes
    Norton, who I have great regard for in addition.
        Mr. Chairman, S. 1257 would correct two injustices by
    giving to Utah the additional House seat that many in my State
    believe we deserve following the 2000 Census, and giving the
    half-million Americans living in the District of Columbia full
    House representation. Unlike the House version, S. 1257
    correctly defers to Utah's choice as to how to provide for a
    fourth House Member.
        This avoids potential constitutional difficulties on the
    Utah side of the equation. On the District of Columbia side,
    America's founders might not have foreseen the District
    becoming the major population center that it is today. But
    while they did not affirmatively provide in the Constitution
    for District representation, I do not believe that they
    negatively denied Congress the power to do so.
        On numerous occasions, the Supreme Court has approved
    Congress's application to the District of ``duties or
    privileges normally reserved for States.'' These include the
    application of direct taxes, court jurisdiction and diversity
    cases--Federal court jurisdiction, if you will--and regulation
    of commerce.
        In each of these, and other instances, the Court has not
    viewed the word ``States'' so narrowly as to trump Congress's
    explicit and exclusive power to legislate for the District. I
    do not believe that we should do so here.
        I want to emphasize what I said before the Homeland
    Security Committee: this bill should not be seen as a step
    toward either Statehood or Senate representation for the
    District of Columbia. America's founders wisely concluded that
    the Nation's Capital should not be one of its constituent
    States.
        James Madison said that this was ``an indispensable
    necessity, and while the House represents people, the Senate
    represents States which have equal suffrage in that body.''
        Now, I believe the Senate represents people, too, but one
    of the most important things here, and pivotal things, to me,
    is that only States have equal rights of suffrage in the U.S.
    Senate.
        Now, as such, the District population supports House
    representation. Its status as a District does not justify
    Senate representation, and I would not support changing that or
    granting that. I acknowledge, as Judge Wald put it in her
    prepared statement, this is a ``close and difficult
    constitutional question.'' There are legitimate arguments on
    both sides. I must note that there are both liberal and
    conservative legal experts on both sides.
        That said, the commitment of America's Founders to a
    representative government, their grant of complete authority
    over the District of Columbia to Congress, their failure to
    prohibit District representation in the House, and both
    congressional and judicial precedent combine to satisfy me that
    S. 1257 rests on sufficiently firm constitutional ground.
        Now, Mr. Chairman, the distinguished witnesses before us
    represent different views and perspectives which are well
    suited to the question before us, whether or not S. 1257 is
    constitutional.
        I am pleased to see here today the congressional
    Representatives of both Utah and the District, Representative
    Chris Cannon and Delegate Eleanor Holmes Norton, as well as our
    own Utah Attorney General, Mark Shurtleff, on the first panel.
    I have respect for each one of you.
        And on the second panel, we have a mixture of views, with
    lawyers and law professors, a former Chief appeals court judge,
    as well as representatives from the Congressional Research
    Service and the Department of Justice.
        Now, this is an able and learned group of witnesses. I know
    most all of them, and we will all benefit from their testimony.
    I particularly look forward to it and the interchange that we
    might have.
        Thank you, Mr. Chairman. That is all I need to say at this
    point.
        Senator Feingold. Thank you, Senator Hatch.
        Representative Cannon. Mr. Chairman?
        Senator Feingold. Yes, Representative Cannon?
        Representative Cannon. Would you excuse me from the
    hearing? If there are some questions I would be happy to answer
    them, but we do have this hearing ongoing on the House side.
        Senator Feingold. Absolutely. Thank you for attending.
        Representative Cannon. Thank you, Mr. Chairman.
        Senator Feingold. Now I am especially pleased to introduce
    our next witness. Eleanor Holmes Norton is the Delegate for the
    District of Columbia in the House of Representatives. She has
    served in this capacity since 1991.
        Prior to her election, she was a law professor at
    Georgetown University Law Center, where she still teaches today
    on an adjunct basis. She graduated from Antioch College and
    Yale Law School.
        Mrs. Norton, it is a great pleasure to welcome you to the
    Judiciary Committee, and the floor is yours.

    STATEMENT OF HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS
                     FROM THE DISTRICT OF COLUMBIA

        Delegate Norton. I appreciate the opportunity to testify
    here today. I especially appreciate the very thoughtful opening
    statements that each of you have made, you, Mr. Chairman,
    Chairman Leahy, and of course, Senator Hatch, my good friend
    for a long time.
        I appreciate the opportunity to say a few words about what
    I think can rightfully be called the Voting Rights Act of 2007.
    The Senate and the House having just passed the Voting Rights
    Act of 2006, I think you will understand that I have not simply
    stolen a title in order to elevate our bill when you hear my
    testimony.
        You, Mr. Chairman, and Senator Lieberman deserve special
    thanks from the District of Columbia because you were the
    original sponsors of my No Taxation Without Representation Act.
    I thank you now, also, for your leadership, for the leadership
    of all three of you, on S. 1257, the bill, as Senator Hatch
    says, for a House seat only. That is all that the residents of
    the District of Columbia are here seeking.
        I want to speak briefly from notes and ask that my full
    testimony be admitted into the record.
        Senator Feingold. Without objection.
        [The prepared statement of Delegate Norton appears as a
    submission for the record.]
        Delegate Norton. Mr. Chairman, there are too many
    responsible for this bill to name, and I won't try to do so. I
    am enormously grateful to my old friend, Senator Orrin Hatch,
    the senior citizen--senior Senator--
        [Laughter.]
        Chairman Leahy. You were right the first time.
        [Laughter.]
        Senator Hatch. You got it right the first time. I feel that
    way right now.
        [Laughter.]
        Delegate Norton. In that case, Senator, you have plenty of
    company in this room.
        [Laughter.]
        Delegate Norton. From Utah, and Senator Bob Bennett, who
    are lead sponsors of this bill. I want to thank Senator Hatch
    for his very compelling and principled testimony almost 2 weeks
    ago.
        I want to thank Governor John Huntsman, who testified in
    the House for the bill. I am very pleased to see the
    distinguished Attorney General has come to the Senate today,
    and I am very grateful to the entire Utah delegation. You just
    heard from one of the unanimous Utah delegation who have worked
    literally side-by-side with us every step of the way.
        I have to mention a special thanks to my co-author and lead
    sponsor, Representative Tom Davis of Virginia, who observed the
    precedents of the House and the Senate, that when there is
    bipartisanship you can enhance representation in Congress, and
    has worked closely with me and with the civil rights leadership
    because he saw no justification whatsoever for denying
    taxpaying residents of the District of Columbia a vote in their
    own House of Representatives.
        Tom's bipartisanship, which began this bill, is epitomized
    by the votes in the House. And I do want the Senate to know
    that three committees voted, by large majorities, for this
    bill.
        One of those large majorities occurred in the Republican
    House, and this bill almost got to the floor in the 109th
    Congress. Two of the large votes occurred this year. This
    bipartisanship is especially epitomized by two conservative
    scholars who have led the constitutional work on the committee.
        Professor Viet Din has testified three times. As you may
    know, he served as the constitutional point man in the Ashcroft
    Justice Department, and Judge Kenneth Starr also testified in
    the House for this bill. I am very appreciative of the scholars
    who have come forward for this bill at this time.
        I see Mr. Turley is here once again. He cannot get enough
    of this bill. Mr. Turley is my good friend. He and I belong to
    the same fraternity, as it were; he and I both are tenured law
    professors. But that is where the resemblance ends.
        [Laughter.]
        Delegate Norton. I have been able to do nothing with Mr.
    Turley, although he does inform me that I have converted his
    mother. That is good enough for me.
        [Laughter.]
        Delegate Norton. I see that the apple has fallen very far
    from the tree.
        [Laughter.]
        Delegate Norton. I have only three points to make, Mr.
    Chairman, and they are all points of principle on which S. 1257
    is rooted. One is the principle of comity or deference to the
    House, the only House that is implicated, and comity and
    deference to the State of Utah, the only State that is
    implicated.
        The second principle is respect for the mandate and trust
    which the Framers left with the Congress of the United States
    to assure that the voters of the new Capital would have a vote.
        The third principle, Mr. Chairman, is equal representation
    under law, regardless of race or color, which S. 1257
    inevitably carries, cutting loose from the racial moorings and
    roots that for more than 150 years denied all rights--all
    rights of all kinds--to the citizens of the Nation's Capital.
        First, comity, deference, and respect for the House. The
    bill has no effect on the Senate. From its genesis, it was a
    request only for the House vote. The House labored long and
    hard. It required exact political equivalence of both
    jurisdictions. We have a bicameral legislature. So, Mr.
    Chairman, you of the Senate have an equal say on whether we of
    the House of Representatives can add two House seats, seats for
    Utah and for the District of Columbia. I ask you to respect the
    will of the House, and I ask you to respect and give deference
    to the State of Utah. I believe Utah is the most Republican
    State in the Union. I know that the District of Columbia is
    regarded as a Democratic jurisdiction.
        Senator Hatch personally came to testify and he not only
    spoke for Utah, for his State, as you might expect, but he
    spoke as a constitutional expert who has chaired this committee
    and he spoke about the rights as well for the residents of the
    District of Columbia. I just want to say again, Senator Hatch,
    how much your testimony meant to me personally and to the
    residents of the District of Columbia.
        I want to say as well that Utah is no mere Alaska and
    Hawaii, District of Columbia matching here. You are going to
    hear straight from the Attorney General about how Utah lost by
    a few hundred votes its chance for a House seat.
        I think you should know--perhaps the Attorney General will
    tell you--that 1,100 young people who feel that it is their
    religious mission to carry the gospel of their church around
    the world, were temporarily absent, on a religious mission from
    their State, and that the State of Utah felt so deeply about
    being denied a vote, that they took this matter to the Supreme
    Court of the United States and almost won, 5:4. So they bring a
    kind of zeal to the table that we, the residents of the
    District of Columbia, bring.
        Governor John Huntsman, when he testified in the House--and
    I will quote a sentence from him--``the people of Utah have
    expressed outrage over the loss of one constitutional seat for
    the last 6 years. I share their outrage. I can't imagine what
    it must be like for American citizens to have no representation
    at all for over 200 years.''
        Second, I ask you to respect and honor the will of the
    Framers, who fully expected that Congress would grant the vote
    when the District came under congressional jurisdiction.
        It is absurd, Mr. Chairman, and I believe slanderous, to
    conclude that the Framers who we so revere would fight a
    revolution, with all of the risks that it took, on one issue,
    the issue of representation, and then would turn around and
    deny representation to the residents of their own Capital.
        If you think there is not to be representation, find
    yourself another source. I do not believe that it is fair to
    derive that conclusion from our own Framers. You will hear more
    detailed testimony about this, that in fact the District is not
    a State. I can't help but mention something about that, Mr.
    Chairman, because the Congress has not had the slightest
    difficulty in treating the District as a State, with its laws,
    its treaties, and for constitutional purposes.
        There are many, many examples. But you must know what my
    favorite one is: the Sixteenth Amendment. That, in its terms,
    says that the States, the citizens of the States, shall pay
    Federal income taxes. It does not mention the District of
    Columbia. Not withstanding that, the citizens of the District
    of Columbia gave to their Government, on April 15 and before,
    $4 billion to support their Government.
        I ask you to remember that the land that was contributed
    came from six men who signed the Constitution, three from
    Maryland and three from Virginia, that on this land, which was
    populated--this was not a bare piece of land, this was fairly
    well populated, in fact, including veterans of the
    Revolutionary War.
        These veterans and other citizens voted for the 10 years of
    transition until Congress took full control, and indeed the
    first Congress promised that Congress itself would carry out
    the mandate of the Framers to make sure that the residents of
    Maryland and Virginia living on that land were left whole.
        It falls to the 110th Congress, Mr. Chairman, to fulfill
    this promise after 206 years. I do want to make clear my view,
    that I believe that the Framers would never have asked
    Maryland, Virginia, or the other Framers to contribute land, or
    whether or not contributing land, to deny representation to
    their own citizens in the process.
        Third, and finally, Mr. Chairman, S. 1257 removes the
    racial scar that refuses to heal until the racial underpinnings
    of the denial of the vote and of democracy to the citizens of
    the District of Columbia is removed.
        You here in the Congress have done exactly this in the
    Voting Rights Act of 2006, reauthorized last year. I, of
    course, believe this is indeed, and will always be, remembered
    as the Voting Rights Act of 2007.
        Congress is responsible for the racial basis of our bill,
    just as responsible as the Southern States were responsible for
    the underpinnings of the Voting Rights Act of 1965. We had no
    majority Black population here until the late 1950s, but many
    African-Americans came to the District of Columbia, surrounded
    by the southern States, especially Maryland and Virginia.
        My great-grandfather, Richard Holmes, was one of those
    Black men, a runaway slave from Virginia who came here in the
    1850s. It was the District's large African-American population
    that was responsible for the denial of home rule and for voting
    rights for White and Black citizens alike.
        As one southern Senator put it, and I am quoting him, ``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.''
        It is significant that the segregation in the District of
    Columbia was affirmatively mandated by the Congress of the
    United States. I ask you to remember that the District of
    Columbia was one of five Brown v. Board of Education cases.
        On May 17, 1954, I was sitting in a segregated classroom in
    Dunbar High School when Charles Lawson, the principal, sounded
    the bell of the intercom system to say that the Supreme Court
    of the United States had just declared segregated classrooms,
    like the ones in which we were then seated, unconstitutional.
        All public accommodations in this city were segregated by
    the Congress. Only the buses and streetcars did not carry
    segregation. There was no mayor, no city council, no self-
    government, no democracy until the civil rights movement forced
    the issue.
        The District's home rule and voting rights have been high
    on the agenda of the NAACP ever since it was created, and of
    the Leadership Conference on Civil Rights since its founding.
    The civil rights leadership themselves wrote to the House
    concerning this bill. Julian Barn, Dorothy Height, Mark Morial,
    Wade Henderson wrote, and I am going to quote a word from what
    they wrote because it says from their own struggle why the
    District is where it is today.
        I quote these four civil rights leaders: ``The District of
    Columbia achieved a constitutional delegate and partial self-
    government only after its citizens were aided by the civil
    rights movement, including many of our organizations who
    finally made the total absence of congressional representation
    and self-government in the Nation's Capital a matter of
    national importance.
        In light of the long history of federally enforced
    segregation in the Nation's Capital until recent decades and
    its majority African-American population, the continued
    disenfranchisement of District residents, particularly in the
    House of Representatives, cannot be explained or tolerated in
    today's world.''
        The Voting Rights Act, when it was pending last year,
    occasioned a letter from the first African-American popularly
    elected Senator in the United States, Senator Ed Brook. And I
    note that this native Washingtonian has already received from
    the Senate the requisite number of votes to get the highest
    constitutional medal, the so-called Congressional Medal; we are
    gathering signatures in the Senate.
        But he wrote to Members of the House and the Senate in this
    way: ``The experience of living in a segregated city and of
    serving in our segregated Armed Forces perhaps explains why my
    parties worked on the Voting Rights Act reauthorization last
    year. The pending DC House Voting Rights Act has been so
    important to me personally. The irony, of course, is that I had
    to leave my hometown to get representation in the Congress and
    to become a Member.''
        There is no escaping, finally, Mr. Chairman, that
    Congress's responsibility for the racially segregated Capital
    for 150 years, for the denial of self-government to Whites and
    Blacks alike because of the significant numbers of African-
    Americans, that taint is so deep and will remain as long as the
    residents of this city are treated as second-class citizens.
        I am a third-generation Washingtonian. I trace my own
    heritage back to a slave couple in Virginia in the early 19th
    century. My great-grandfather came here as a slave seeking
    freedom, not the vote. He was emancipated 9 months before the
    Emancipation Proclamation because Lincoln emancipated the
    slaves in the District of Columbia 9 months early. He lived to
    see his son, Richard, join the DC Fire Department in 1902.
        I have had the high honor to represent citizens of my
    hometown for 17 years. They seek no honor. They do think the
    case has been made long ago for full representation, and that
    the case is closed today as District residents today are on the
    ground in Iraq and Afghanistan, fighting for their own country
    and for the rights of the Iraqis. I ask that you give the
    residents of your Capital the honor of a vote in the House of
    Representatives for the first time in 206 years.
        I thank you, Mr. Chairman.
        Senator Feingold. Thank you so much, Mrs. Norton, for your
    important, interesting, and moving testimony. I greatly enjoyed
    listening to it.
        Our final witness on this panel is Mark L. Shurtleff. He
    was reelected as Utah attorney general in 2004, and is now
    serving his second term. Previously, Attorney General Shurtleff
    served as an officer and attorney in the U.S. Navy Judge
    Advocate General Corps. We appreciate your making the trip to
    join us today, and you may proceed, sir.

      STATEMENT OF HON. MARK L. SHURTLEFF, UTAH ATTORNEY GENERAL,
                          SALT LAKE CITY, UTAH

        Mr. Shurtleff. Thank you, Senator, Senator Hatch. Thank you
    very much for the invitation to be here today. It is a great
    honor to have a chance to say something.
        When I was first asked to come here and comment I said,
    well, you have got Senator Hatch, a constitutional scholar, you
    have got Representative Cannon coming, he is a lawyer. Why do
    you need three lawyers from Utah to come and make a point?
        I tried to understand why, or what I might possibly add. I
    hope that I am not repetitive of what has been said, and I
    would ask that you include my entire written statement in the
    record.
        Senator Feingold. Without objection.
        [The prepared statement of Attorney General Shurtleff
    appears as a submission for the record.]
        Mr. Shurtleff. I will maybe just highlight a couple of
    things. But what really struck me, I guess, today, is that as
    Attorney General Linda Singer, the attorney general of the
    District of Columbia, and I have worked together to present our
    comments and to write letters to the White House and to
    Congress, coming together and forging an unusual alliance
    between our State and the District of Columbia for a common
    good, and as Representative Norton was talking, it occurred to
    me, as a Dredd Scott biographer, that 150 years ago, you
    probably know, just a few hundred yards from here in the old
    Supreme Court room below your Senate chambers, the Chief
    Justice of the U.S. Supreme Court took a look at the
    Declaration of Independence, that self evident truth that all
    men are created equal, and he looked at a Black man and said,
    because of the color of your skin and because of your race, you
    are not a man, you are not protected by that great statement at
    the start of this Nation that made us what we are, and that you
    have no rights that any White man would ever have to respect.
    There was a great Civil War. In 100 years' worth of civil
    rights, we have come a long way.
        I am not going on record necessarily as saying this is a
    race issue, but I am saying that it is an equality issue, it is
    a justice issue. The very foundation of this Nation, in that
    preamble to the Constitution, said the first thing we do in
    forming a more perfect union is to establish justice.
        As you know all too well, justice means equality, equal
    access, equal opportunity to everybody, and ultimately
    everybody, regardless of race. Yet, we still have this problem
    here for 200 years, where equality and equal representation is
    a myth.
        I want it understood that I am in a different position as
    attorney general. I am a member of the executive branch. My job
    is not to make the laws; you get to do that. My job is to
    enforce the laws made in my State, to execute the laws, and to
    defend in court those laws which you passed.
        Even though we feel very strongly, and one of the first
    things I did as attorney general when I came into office in
    2001, was to sue the Federal Government, the Census Bureau,
    over this issue regarding representation. I still smart over
    that.
        I believe that, for 6 years, Utah has been the least-
    represented State in the Nation. We argued very strongly that
    under-representation is no representation. As Governor Huntsman
    said, as quoted by Representative Norton, I cannot imagine what
    it would be like to have no representation for over 200 years.
    So it is my responsibility to defend and enforce the law.
        I will not, and I know that nobody here would be here, in a
    self-serving purpose. I know that it seems like we could all
    say Utah and DC, we are all in it for something. I would not be
    here testifying, and I know that this bill would not be before
    Congress if it was just that, if all those who supported it,
    who were the sponsors of it, did not believe it was
    constitutional. That ultimately is my responsibility. I will
    not support a law that I do not believe is constitutional and
    can be upheld in the courts, so that is what it boils down to.
        What I and Attorney General Singer felt like was important
    for you to hear from the executive branch, from law enforcement
    officers, of our belief, based on a huge amount of study and a
    great number of scholars that you will hear from later, that it
    is, in fact, constitutional.
        If I may just hit a few of those points as far as
    constitutionality are concerned. I will just add that the
    intent of the District clause was to ensure Federal authority
    over the Nation's Capital, not to deprive its citizens living
    there of their rights of citizenship.
        We all know it is very easy to read a few words in the
    Constitution. There are hundreds of thousands of people out
    there who will look at that and say, it is there, it is in
    writing, it is not a State, therefore you cannot have
    representation.
        But it is so important to go into legislative intent, and
    the history and meaning, and how can there be anything more
    fundamental to our Nation and to our representative republican
    form of government than equal representation?
        Second, there is evidence that the Framers assumed that the
    ceding States would ensure that their citizens' liberty
    interests were protected. We quote Madison in our comments:
    ``Third, when the Framers wanted to restrict voting
    representation in the Constitution they did so affirmatively,
    as in Article I, Section 2, where for apportionment purposes,
    slaves and taxpaying Indians were counted as three-fifths
    person.''
        If the Framers wanted the District's citizens to have even
    less representation than that--meaning none at all--they surely
    would have included a provision to that effect.
        Finally, at least one Framer, Alexander Hamilton, did want
    to include an affirmative provision for voting representation
    by District citizens to require that representation.
        There appears to be no congressional historical
    documentation as to why this amendment did not pass, but the
    circumstantial record indicates that it was because the Framers
    believed it was not needed since the District of Columbia
    citizens could continue to vote with the ceding States at that
    time, Maryland and Virginia, which they all did for, as we
    know, 10 years after the District's creation in 1791, either
    that or because Congress could act to provide representation
    under the District clause. In sum, what Congress taketh away,
    Congress can give back.
        I would, again, urge at this time, when our Nation seems so
    split on partisan lines, when there is so much taking our
    attention, that at this time we can come together as Americans,
    in the bipartisan nature of this bill, of these bills, to do
    what is right, to do what is American, to do what is just. We
    have tried to demonstrate that in Utah in creating a fourth
    seat in our Senate.
        In fact, our Senate Majority Leader, Kurt Bramble, is here
    today. He chaired the committee on redistricting, drawing up a
    proposed fourth seat. It was not drawn to just ensure
    Republican, it was one that was fair and bipartisan. All the
    Democrats in our State Senate voted for that proposal. I think
    there was plenty of evidence that we are doing this together.
        Finally, some people say, it is just the District of
    Columbia and Utah. Why should the Nation come together on this?
    I think that we must again return to the words of Dr. Martin
    Luther King, writing from a Birmingham jail, ``Injustice
    anywhere,'' injustice in DC, I would say, ``is a threat to
    justice everywhere.''
        Thank you, Mr. Chairman.
        Senator Feingold. Thank you so much, Mr. Attorney General.
        Unless Senator Hatch has an additional comment, I want to
    thank the witnesses very much.
        Senator Hatch. I would just like to say, Mr. Chairman, how
    much I have appreciated both of you coming and testifying.
        Eleanor, you have been a wonderful leader here. I just want
    to pay total respect to you. I really enjoyed your statement
    and the passion that you have for this. I have an equal passion
    for it. I really believe that this is the right thing to do,
    and I intend to help you every step of the way if we can. Let
    us hope we can get enough people of good will to be able to do
    this.
        Thank you. Thank you, both.
        Senator Feingold. Thank you, Senator Hatch. Thanks so much.
        I would ask the second panel to take their seats. I do not
    know when the votes are going to start, but we will try to
    proceed.
        I would ask the witnesses to please stand to be sworn.
        [Whereupon, the witnesses were duly sworn.]
        Senator Feingold. I thank the witnesses.
        We will proceed in order, proceeding from left to right. I
    would ask each of you to try to limit your oral presentation to
    5 minutes so we can have ample time for questions and debate.
    Of course, we will include your full statements in the record.
        Our first witness on this panel is John P. Elwood. Mr.
    Elwood is a Deputy Assistant Attorney General in the Office of
    Legal Counsel for the Department of Justice. He previously
    served as the Department's Assistant to the Solicitor General,
    as counsel to the Assistant Attorney General for the Criminal
    Division, and as an attorney in the Criminal Appellate Section.
        Mr. Elwood, thank you for joining us today. You may
    proceed.

    STATEMENT OF JOHN P. ELWOOD, DEPUTY ASSISTANT ATTORNEY GENERAL,
      OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, WASHINGTON,
                                  D.C.

        Mr. Elwood. Thank you, Mr. Chairman and members of the
    committee for the opportunity to appear today to discuss the
    constitutionality of S. 1257, the District of Columbia House
    Voting Rights Act of 2007.
        The administration strongly opposes this legislation, not
    on grounds of policy, but on grounds of constitutionality. For
    at least 40 years, the Justice Department has maintained, under
    both Democratic and Republican administrations, the residents
    of the District of Columbia cannot, constitutionally, be given
    voting representation in Congress by simple legislation.
        Our position is dictated by the clear language of the
    District, the understanding of the Framers, and the consistent
    view of both Congress and the executive branch.
        Article I, Section 2 of the Constitution provides that
    ``the House of Representatives shall be composed of Members
    chosen every second year by the people of the several States,
    and the electors in each State shall have qualifications
    requisite for electors of the most numerous branch of the State
    legislature.''
        Eleven other constitutional provisions likewise explicitly
    tie voting for Congress and the President to Statehood. The
    Framers and their contemporaries clearly understood that the
    Constitution barred congressional representation for District
    residents, beginning in the ratification debates of 1788,
    continuing through the establishment of the District in 1800,
    and its early days as the Nation's Capital.
        The Constitution was repeatedly criticized for denying
    District residents a hand in electing Congress. Advocates of
    representation, including Alexander Hamilton and Members of
    Congress, sought to address the matter by constitutional
    amendment or by postponing the formation of the District. Those
    efforts failed and Members of Congress and commentators
    indicated that Congress could not provide redress by
    legislation.
        Soon after the District's formation, advocates focused on
    retroceding the land to Maryland and Virginia to restore
    representation, and in 1846 the southern portion of the
    District was returned to Virginia, in part for that reason.
        The Framers of the Constitution were well aware of the
    Enclave clause, Article I, Section 8, Clause 12, which provides
    Congress authority to exercise exclusive legislation over such
    a district, and which some proponents of S. 1257 have recently
    identified as a constitutional basis for the bill.
        But during the time the Framers were active in Government
    there was no proposal of which we are aware to provide District
    residents congressional representation under its authority.
    That is not surprising. They understood, as the Supreme Court
    later confirmed, that the clause is subject to the
    Constitution's other textural limits and, thus, would not
    authorize congressional representation for non-States.
        Consistent with this historical understanding, Congress has
    consistently and expressly recognized that such representation
    would require either Statehood or a constitutional amendment.
        In 1967, and again in 1975, the House Judiciary Committee
    emphatically stated, ``If citizens of the District are to have
    voting representation in the Congress, a constitutional
    amendment is essential. Statutory action alone will not
    suffice.''
        Congress accepted the committee's view and approved a
    constitutional amendment in 1978 that would have given the
    District voting representation, but it failed to win
    ratification.
        During this period, and particularly during the Johnson and
    Carter administrations, the Department consistently and
    emphatically maintained that ``if the District is not to be a
    State, then a constitutional amendment is required'' to afford
    its residents voting representation in Congress.
        The Enclave clause provides no former basis now for
    providing the District congressional representation than it did
    in 1788, 1800, 1846, or 1978. Claims that it does authorize
    such legislation are inconsistent with the Framers'
    understanding and the consistent historical practice of
    Congress.
        They are inconsistent with the bedrock constitutional
    provisions that specifically address the composition and
    election of Congress which were carefully crafted to achieve
    the great compromise that established our bicameral system, and
    they proved too much. If proponents of this view are current,
    Congress would also have authority to provide representation to
    other Federal enclaves and to the territories.
        Moreover, if the word ``State'' is to be read out of
    constitutional provisions governing representation, Congress
    could also disregard the provision's other limits such as on
    the size of a congressional delegation. Indeed, S. 1257 fixes
    the District's representation at one Member, without
    reapportionment, no matter how large its population becomes.
        The bill's departure from constitutional procedures would
    provide District residents an anomalous and unstable form of
    representation. Limited representation in a single House of
    Congress that can be eliminated at any time by a majority vote
    and which at best would exist under a cloud of suspect
    constitutionality, the Constitution establishes clear and
    uniform standards for representation to avoid that state of
    affairs. It is through adherence to the Constitution that we
    best guarantee liberty.
        If the District is to be given representation, it must be
    accomplished through a process that is consistent with our
    constitutional scheme, such as amendment consistent with
    Article V of the Constitution. Accordingly, if S. 1257 were
    presented to the President, the senior advisors would recommend
    that he veto the bill.
        I thank the committee for allowing me to testify and would
    be happy to take any questions you may have.
        Senator Feingold. Thank you, Mr. Elwood.
        [The prepared statement of Mr. Elwood appears as a
    submission for the record.]
        Senator Feingold. The vote has just started, but the good
    news part of it is that there may just be one vote. So I am
    going to go right over there and come right back. The committee
    stands in recess.
        [Whereupon, at 2:30 p.m. the hearing was recessed.]
        AFTER RECESS [2:50 p.m.]
        Senator Feingold. I call the committee back to order. I
    thank you for your patience. I hope we're not interrupted
    again, but it is certainly possible there will be more votes.
    But let's proceed.
        Our next witness is Judge Patricia Wald, who served for 20
    years on the U.S. Court of Appeals for the DC Circuit,
    including a 5-year term as Chief Judge. She retired from the
    bench in 1999. Judge Wald was appointed by Kofi Annan to sit on
    the International Criminal Tribunal for the former Yugoslavia,
    where she served for 2 years until 2001.
        Judge Wald, it is really an honor to have you here with us
    today, and you may proceed.

     STATEMENT OF PATRICIA WALD, FORMER CHIEF JUDGE, U.S. COURT OF
     APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, WASHINGTON, D.C.

        Judge Wald. Thank you, Senator Feingold.
        Let me begin on a personal note. I was in Congress--
    actually on the Hill--testifying 30 years ago, advocating, for
    the Carter administration, a constitutional amendment, which,
    as everybody knows, did pass Congress. It would have given the
    District full representation in both the House and in the
    Senate. But, of course, it failed State ratification.
        I am told that the outlet for constitutional amendments is
    not any more promising today than it was then, but I do want to
    make one point in reference to Mr. Elwood's testimony. I was
    the Carter administration's representative in the House, and we
    did discussed all--we did back a constitutional amendment
    because that was the bill that was at issue then.
        I discussed in my testimony, and the other people who
    appeared with me discussed, four different possibilities or
    alterations for giving the DC vote. The point I want to make
    is, not one of them involved the Article I, Section 8, Clause
    13 power of Congress to confer it in its role as the exclusive
    legislator for the District. It simply was never discussed. So
    I think that when we look at the history, we have to look at
    that as well.
        The question that is before this particular Congress is the
    constitutionality permissibility of Congress legislating under
    that Article I, Section 8, Clause 13 to provide House
    representation.
        And I want to stress here that, from the time of Madison on
    down, through Supreme Court dicta, as it were, but nonetheless
    rousing rhetoric in the terms limits case in the early 1990s,
    it is the House that has been identified as deriving its power
    from the people and not necessarily from the States.
        Just let me quote one line from the Federalist Paper Number
    39, going to Madison, who said, ``If we resort for a criterion
    to the different principles on which different forms of
    government are established, we may define a Republic to be a
    government which derives all its powers, directly or
    indirectly, from the great body of people. It is essential to
    such a government that it be derived from the great body of
    society.''
        He went on, ``on confirming the Constitution with the
    standard here fixed, we perceive at once that the House of
    Representatives is elected immediately by the great body of the
    people. The House of Representatives will derive its power from
    the people of America.''
        Now, I listened with awe at Representative Eleanor Holmes
    Norton's eloquent statement of the morality and the justice, as
    well as yours, Senator, and Senator Hatch's and Senator Leahy's
    reasons for giving the District of Columbia House
    representation. I will, however, stick to my 5 minutes, so I am
    just going to take up three or four legal constitutional
    points.
        As a long-time resident of the District myself, over 25
    years, and I came here as a war bride in the early 1950s when
    my husband was on a ship during the Korean War. I do have a
    personal interest, but that is all it is, a personal interest.
        As Senator Hatch repeated from my testimony, I do think it
    is a close, and I think it somewhat novel, constitutional
    issue. I do think, however, that Congress has to make up its
    mind that it is constitutional no matter how close or no matter
    how novel.
        In many other fora I have sometimes railed at the notion
    of, we will let the courts decide. I think that Congress,
    however close, however novel, has to make up its own mind that
    this is constitutional. But it is close. That does not mean
    that it cannot decide that the Constitution tilts on one side
    rather than the other.
        There are two potential clauses in the Constitution that
    are relevant. There is the Section 8, Clause 13, which says
    that Congress has the power to ``exercise exclusive legislation
    in all cases whatsoever over the District.''
        Now, that sounds like a plenary grant of power, and indeed,
    several supreme courts and other courts have talked about how
    it is greater than the power that the States have over their
    citizens, and it is plenary, and there is virtually nothing
    that it cannot encompass.
        That is not necessarily completely true, because even the
    District clause has to be accommodated to the rest of the
    Constitution, as Mr. Elwood pointed out. It couldn't, for
    instance, say we'll have racial segregation or gender
    discrimination in the District, but I think what it does say is
    there must be a clear impediment in the Constitution to
    Congress exercising its sovereign and plenary power.
        I want to stress here that we are speaking of Congress's
    power to legislate, not a citizen's right to demand voting
    power. That claim was rejected in the three-judge courts, Adams
    v. Clinton, which was affirmed summarily by the Supreme Court.
        But I think the principle, if not the only one impediment
    that has been raised, is Article I, Section 2, which says that
    ``the House shall be composed of members chosen by the people
    of the several States and the electors shall have the
    qualifications requisite for the election of the most numerous
    branch of that legislature.''
        The history of that clause, however, strongly suggests to
    me that it is not an absolute requirement for voting in Federal
    elections. Congress and the courts have exercised and
    recognized a power to bestow voting power on those who would
    not qualify as State electors for the most numerous branch, as
    decided by either State supreme courts or by State executives
    or legislatures.
        The Overseas Voting Act confers Federal and State voting
    power on those who emigrate abroad. It uses the convenient
    fiction--I think I may call it that--that it is merely an
    extension of bona fide residence, the same concept used in
    Article II.
        But, however, if you look at the way the legislation reads
    and the way it has been applied, it covers all persons who have
    lived in a particular State whether they intend to return to
    those States or, indeed, whether they are citizens of the
    States at all.
        Ironically, the effect of that has been that if a
    Massachusetts resident moves permanently to Zimbabwe, she can
    continue to vote, but if she moves to the District she can't
    vote.
        The Supreme Court, in another case, Kornman v. Evans, in
    1970, ruled that the State of Maryland tried to, but could not,
    disenfranchise NIH enclave residents from voting, even though
    they tried very hard to do so. In fact, they said that they
    were not residents.
        There were several early cases that they cited, going back
    to the 1800s, to say the fact that Congress had the same powers
    under the Enclave clause as it had under the District, showed
    that Congress was the exclusive legislator and therefore they
    were not part of Maryland, and therefore they could not be
    residents of Maryland.
        The Supreme Court didn't seem to want any of that. It said,
    listen we're not going to look at those old cases because we
    need not consider, they said, the early cases, for the
    relationship between Federal enclaves and the States in which
    they are located has changed considerably since they were
    decided. Then they went off on a Fourteenth Amendment interest
    of the States, showing that, in fact, Congress had let Maryland
    take some jurisdiction for several aspects of people who lived
    in the enclaves.
        But in so many other aspects, mentioned at greater length
    by other witnesses, from civil rights, to full faith and
    credit, to regulation of commerce, to imposition of taxes,
    Congress has legislated to put the District on a par with the
    States. I think you have to think hard why Congress should be
    denied that same power, when the most important civil right of
    all involves the right to vote for one's leaders.
        Now, it is the Tidewater case of 1949 that's most
    frequently cited for the proposition that Congress does have
    this power under this same so-called District clause. There a
    plurality--yes, it was a plurality--ruled that, despite
    limiting language in Article III, that the judicial power of
    the United States shall extend to, inter alia, controversies
    between citizens of different States.
        This plurality found that Congress, pursuant to this same
    District clause that we are talking about today, could confer
    power upon the Federal courts, the Article III courts, to hear
    cases or controversies between District residents and citizens
    of States.
        Now, there are several things in that Tidewater case. I do
    not suggest that it can't be distinguished. It is very easy for
    lawyers like us and courts to distinguish this case from that
    case. Of course, there are several distinguishing
    characteristics. But what's really important is the way the
    plurality stressed ``deference'' to Congress on the method it
    sought to achieve a legitimate aim.
        In that case, the plurality written by Justice Jackson said
    that Congress had a right to make adequate courts, to set up
    adequate courts for the DC citizens, and could do that by
    conferring upon the diversity jurisdiction courts, the Article
    III courts' jurisdiction to hear cases between District
    residents and citizens of other States.
        Now, it is said by the opponents--and if I can predict--
    that Jackson also said that he, for the plurality, was dealing
    with ``the mechanics of administering justice, not involving an
    extension or denial of a fundamental right.'' I have to pause
    there to say, Justice Jackson is one of my heroes, but I wonder
    if he really read the ratification debates, because all over
    them are proponents of States worrying about having their cases
    taken from their State courts and put into the Federal
    diversity courts.
        But, nonetheless, I think even more important, in the next
    line--again, quoting--Jackson said, ``The considerations which
    bid us strictly to apply the Constitution to constitutional
    enactments, which invade fundamental freedoms or which reach
    for powers which would substantially disturb the balance
    between the Union and its component States, are not present
    here. Such a law should be stricken down only upon a clear
    showing that it transgressed constitutional limitations.''
        I would say that we have no such showing, no such clear
    showing, that this bill would constitute a law that
    transgressed constitutional limitations, upset the balance
    between Congress and the States, since Congress has always had
    the ability under Article IV to admit new States. And certainly
    there is no invasion of fundamental rights, there is an
    extension.
        Senator Feingold. Thank you.
        Judge Wald. I see that my time is up. The most I will do is
    say that there is so much evidence about who said what during
    the ratification debates, that there is grist for everybody's
    mill in there. It's like the Bible, there's something for
    everybody there.
        But I do think a couple of things stand out. There is no
    evidence Congress meant, ever, to disenfranchise the District
    residents permanently. It legislated initially to let the
    residents of the ceded territories continue their voting in
    State elections.
        When Madison assumed in the Federalist Paper that is quoted
    so often that the States would take care of their own in the
    act of setting up the District, I have to ask myself, how could
    they have done that? Even if they had been smart enough to do
    that and said we want to continue letting our people have the
    vote, would not there have had to be an enactment of Congress
    which put that into the organic law? And it would have been a
    statute. I didn't see any reference to that having to go
    through by a constitutional amendment.
        So in concluding, I would say that, because of the plenary
    grant of power under the District's legislative clause and the
    absence of any clear impediment to Congress exercising that
    power, and in light of the overwhelming justice--after all, I
    think one other Justice once said it is a Constitution we are
    expounding here and I think we have a right to look at the
    aspirations, and the fact that the underlying--perhaps the
    greatest underlying Democratic/Republican notion in the
    Constitution is the right to select one's own leaders.
        The fact that it is the very Congress which is composed now
    of the States that is going to be passing this, it is not a
    court, or even the executive, levying it on Congress, it is
    Congress itself that is doing that. Congress has every right to
    tilt the--
        Senator Feingold. Can I ask you to wrap up, please?
        Judge Wald. I am done.
        Senator Feingold. OK.
        Judge Wald. Can I finish the sentence?
        [Laughter.]
        Congress has every right to tilt the constitutional balance
    in favor of the legislation.
        Senator Feingold. I do not like doing this to judges.
        Judge Wald. Thank you.
        Senator Feingold. Thank you for your very learned
    testimony.
        Our next witness is Professor Jonathan Turley from the
    George Washington University Law School. Professor Turley is a
    well-known legal commentator on television and has represented
    whistle-blowers, military personnel, and CIA officers, among
    others.
        I have quoted him on a number of occasions but, I'd say to
    Representative Norton, never on this subject.
        [Laughter.]
        He holds degrees from the University of Chicago and
    Northwestern Law School.
        Professor Turley, thank you for joining us today. The floor
    is yours.

      STATEMENT OF JONATHAN TURLEY, PROFESSOR, GEORGE WASHINGTON
                UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.

        Professor Turley. Thank you, Mr. Chairman, thank you,
    Senator Hatch, thank you to the committee for inviting me on
    this important subject.
        I hope at the outset we can agree that this is a matter for
    people of good faith to disagree about, and it is not a debate
    about those who would want a vote for the District of Columbia
    and those who do not want a vote for the District of Columbia.
        I am hoping all of us can agree that the current status of
    the District of Columbia is a scandal--it long has been a
    scandal--and that the citizens should not remain
    disenfranchised.
        For that reason, I agree with my good friend, Eleanor
    Holmes Norton, on virtually everything she had to say, except
    for the fact that she's calling my mother to rebut me.
        [Laughter.]
        But one of the greatest things we could do to improve
    Congress would be, indeed, to have Delegate Norton as a voting
    member. She is a national treasure.
        But that still does not influence how one views the
    Constitution. If it were up to me, if it was a matter of
    looking just to Eleanor Holmes Norton, I would have no question
    at all as to what we should all do. But this has always been a
    debate about the means and not the ends. I'm afraid that this
    bill is the wrong means, in my view.
        Now, Senator Pat Moynihan once said that everyone's
    entitled to their own opinion, but not to their own facts.
    You're going to hear a lot of disagreement coming from me and
    others as to what the facts are in terms of the Constitution.
        I've submitted roughly 70 pages of testimony to leave no
    question, in my view, as to the intent of the Framers as to the
    status of the District of Columbia. I believe the Framers would
    be surprised to see the suggestion that the District is without
    representation.
        It has the exact representation that they intended. The
    District is represented by the Congress of the United States.
    That is exactly how they envisioned it, that is exactly how
    they stated it.
        Now, we may have great problems with that, and I actually
    would probably agree that it was a bad design. It has led to
    the disenfranchisement of citizens for too long. But I do not
    believe that there is any doubt from the record as to what the
    intent of the Framers are, but we should start all
    constitutional issues with the text of the Constitution. And
    the relevant clause is not the District clause, as convenient
    as that may be, it's the composition clause. It is the clause
    that defines the Members of the U.S. Congress. It is perhaps
    one of the most important clauses in the Constitution.
        It was the subject of endless debate. The Framers were
    obsessed about States and they were obsessed about who would
    make up the Congress of the United States. They spent a lot of
    time on the composition clause. And Article I, Section 2 is a
    model of clarity.
        It says what they meant, that it is limited to the
    representatives of the several States. That reference to
    ``States'' is ubiquitous throughout Article I, in that the
    meaning of ``States'' is perfectly coherent and consistent,
    until you change it with this bill. Then it becomes incoherent.
        But I want to address very quickly the argument that
    somehow the Constitutional Convention and the ratification is
    somehow ambiguous or that the Framers just didn't think about
    this, or it was an oversight. I must tell you, I think there is
    no basis for that assertion.
        If there were a basis, I think I would be on the other side
    of this table, of this debate. In the Constitutional
    Convention, when it came to the composition clause, the Framers
    were very clear that they meant States. In fact, nobody has
    suggested that they had anything else in mind when they used
    the word ``States''.
        But, indeed, in the first defense of a Framer after the
    Constitutional Convention by James Wilson, he assured people
    that they had nothing to be afraid of from Congress, that
    Congress would not usurp the authority of the States, because
    it said, after all, Article I says that Members have to be
    selected from the several States. He said, if there's no State
    legislature there can't be a Member of Congress.
        That view was carried forth in the 4th Congress, with many
    Framers in the Congress, in 1794, when a member of the
    territory of Ohio tried to get entrance as a voting member. He
    was allowed in as a non-voting member, but both sides of that
    debate agreed that only Representatives of the States--the
    States--can vote.
        Now, I also want to note that I talk about the
    qualifications clause, which I would be interested in expanding
    on. But when you look at the incoherence that occurs when you
    change the meaning of ``States'', you look at the
    qualifications clause and look at the debate behind the
    qualifications clause, you'll see what I mean. They were very
    clear. They did not want Congress to have the ability to
    manipulate the membership of its body.
        In fact, the Supreme Court looked at that history of the
    qualifications debate which followed the John Wilkes
    controversy in England, and the courts said that it was the
    manipulation of the membership, of the roles of Congress, that
    the Framers wanted to prevent and said, it's designed, and this
    is quote from the Supreme Court, ``to stop Congress from being
    a self-perpetuating body to the detriment of the republic.'' If
    you can manipulate your roles, you could do great harm to this
    republic, and that is what you are suggesting today.
        Now, I point out in my testimony that in the Constitutional
    Convention, but also in the ratification debates, there are
    numerous references to the status of the District. It was as
    controversial then as it is now. You could take those debates,
    change the names, and you would have the transcript of this
    hearing.
        People were appalled by the fact that we were creating a
    Federal enclave where District residents would not have
    representation. People called it despotic, they called the
    residents vassals.
        No one less than Alexander Hamilton tried to change it,
    tried to amend it. In fact, one of the various amendments in
    the State ratification conventions was this proposal. There was
    an amendment offered to give the District a vote in the House.
    It was rejected.
        Now, I know that I am running out of time, but I will
    simply note that the issue during retrocession came up with the
    District. The citizens of Virginia immediately hated the
    status. They despised the status of being without
    representation and almost immediately began a retrocession
    movement.
        During that ample debate and the report of Congress looking
    at both the Virginia and Democratic sides, Congress noted that
    the District residents did not want to retrocede, that they
    were given the choice: do you want to stay in this status or
    would you like to have a voting status back with Maryland?
        The report quotes District residents as saying that they
    are entirely content to remain in this status, and in fact a
    vote in Georgetown which was recorded was 559:139 against
    retrocession and in favor of keeping their current position.
        Now, I go through the dangers that are presented by this
    type of interpretation. I hope that you will consider it quite
    seriously. I know that you will. But at the end of this debate,
    all of us have a duty to try to rectify this terrible status.
        But the Constitution doesn't make things easy. In fact, the
    really important things that we have to do are often hard, and
    there's a reason why this hasn't happened before. We tried a
    Constitution amendment and it failed, and retrocession didn't
    have support. Those are hard roads, but those are the roads
    that the Framers left to you. It doesn't allow shortcuts. I
    commend the rest of my comments to the record, with the
    permission of the committee.
        Senator Feingold. Thank you very much, Professor Turley.
        [The prepared statement of Professor Turley appears as a
    submission for the record.]
        Senator Feingold. Our next witness is Professor Charles
    Ogletree, who is the Jesse Climenko Professor of Law at Harvard
    Law School and the founding and Executive Director of the
    Charles Hamilton Houston Institute for Race and Justice.
        Professor Ogletree is a prominent legal theorist and
    advocate for civil rights, and also a well-known legal
    commentator on television. He is a graduate of Stanford
    University and Harvard Law School.
        Professor, thank you for joining us today, and you may
    proceed.

     STATEMENT OF CHARLES J. OGLETREE, JESSE CLIMENKO PROFESSOR OF
           LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS

        Mr. Ogletree. Senator Feingold, thank you for allowing me
    to be here today. And Senator Hatch, it is always a pleasure to
    see you again.
        I am very delighted to have a few minutes to talk about the
    constitutionality of S. 1257. I would ask that my testimony be
    part of the record and that the court as well consider the
    excellent testimony of my former student, Viet Din, who worked
    in the Republican administration, my friend and adversary,
    former Solicitor General, Kenneth Starr, who also worked in the
    Republican administration, and Senator Hatch's testimony, which
    I think crystallizes the conflict with the need to see a clear
    resolution in this matter.
        I think not only can the Senate support this legislation,
    but it must. I say that in the context of the time that we face
    now. The Attorney General from Utah stole some of my thunder,
    but it is important.
        This is 150 years since the Dredd Scott decision in 1857
    and it crystallizes both the way that our courts and our
    Congress interpreted laws. They were wrong. They were mortally
    wrong. They were fatally wrong in ways that we are still paying
    the debt for society today.
        I think that if you look at this in the broader context,
    that is, if you look at Article I, Section 8, Clause 17 which
    makes clear that Congress has the power to exercise exclusive
    legislation in all cases whatsoever over such District and
    grants Congress both plenary and exclusive authority to
    legislate all matters concerning the District, Professor Turley
    wants to move away from that. I think we have to embrace that
    in a serious way.
        In the same respects, I would ask the Senate hearing to
    think of a couple of important contexts as well. When you think
    about where we are, even in Adams v. Clinton, the Supreme
    Court's decision on District of Columbia authority, the Supreme
    Court did not deny that Congress has authority to grant DC
    voting rights. It wasn't explicitly denied. I think it gives
    you even more ground to take a look at this.
        If you go back to the Hepburn case that's been referenced
    in Mr. Turley's comments earlier, and Chief Justice Marshall
    made it clear, it is not the Court, but Congress who must
    adjudicate these issues. I think, in light of that, this
    Congress has a particular responsibility in a propitious time.
        In the 18th century, we had the Revolutionary War, which
    was the war of freedom. It wasn't the Constitution, it wasn't
    the Bill of Rights, it was the people who fought that war for
    freedom.
        In the 19th century, as a result of the Dredd Scott
    decision, we had the Civil War, the war of equality. That is,
    even though the Court, our highest Court, said that people
    weren't equal, it took a war and the bloodshed of hundreds of
    thousands of people for us to move from the period of
    inequality to the period of equality.
        In the 21st century, we have a propitious opportunity for
    representation, the period of justice. For the first time, this
    Congress, not the aristocracy who drafted the Constitution 200
    years ago, not a group of people sitting in a room, but this
    Congress can look at the history, the context, and look at
    Judge Frank Esterbrook's--from the Seventh Circuit--article
    about plain meaning. The one thing he says is pretty powerful:
    ``The plain meaning makes no sense at all because nothing is
    plain when we talk about the Constitution and what it means
    some 200 years after.''
        I would ask as well, as Congresswoman Eleanor Holmes Norton
    talked about being a District of Columbia resident and being
    born here, she follows another great DC resident who I admire
    greatly, Charles Hamilton Houston. He grew up in this city and
    went to the same high school, formerly the M Street High School
    in Washington, DC, left here, went to Amhurst College, became a
    valedictorian, went to Harvard Law School, the first African-
    American ever on the Harvard Law Review.
        He took all of his talent to come back to try to understand
    how to make the Constitution work for all the people. He came
    back here and became a professor at Howard Law School,
    transformed that law school from an unaccredited to an
    accredited law school. Changed the faculty.
        He consulted with his colleagues at Harvard Law School,
    people like Roscoe Pound, people like Felix Frankfurter, about,
    could he bring a suit in the 1930s, 1940s, and 1950s to
    challenge the law that said Plessy v. Ferguson, the 1896
    decision, was constitutional. They told him to a person, he had
    no authority to do that. The Constitution was clear, the court
    was clear: there was no challenge.
        Houston didn't accept that temporary interpretation of the
    law. Instead, he went to work with Thurgood Marshall, a native
    of Maryland, and with Oliver Hill, who just turned 100 years
    old, a native of Virginia, and those men, and others, came
    together to change America when it came to the issue of racial
    equality.
        What they accomplished in Brown v. Board of Education in
    1954 is exactly what I think this Senate and this Congress has
    to accomplish in the year 2007. This is a year to commemorate
    the 150th anniversary of Dredd Scott, but as well it's a year
    for Congress to stand tall, to stand together, to see the
    bipartisan support for this, and to determine, I believe, with
    clarity and conviction that the District of Columbia residents
    who are born here will have the right to vote and be counted
    for the first time in the history of this District.
        Thank you.
        Senator Feingold. Thank you so much, Professor Ogletree.
        [The prepared statement of Professor Ogletree appears as a
    submission for the record.]
        Senator Feingold. Our next witness, Ken Thomas, has been a
    legislative attorney with the American Law Division of the
    Congressional Research Service for 20 years. Mr. Thomas advises
    Congress on various constitutional issues, including
    Federalism, individual rights, and the judiciary. He is a 1983
    graduate of the George Washington University Law School.
        Mr. Thomas, welcome to the committee. You may proceed.

    STATEMENT OF KENNETH R. THOMAS, CONGRESSIONAL RESEARCH SERVICE,
                            WASHINGTON, D.C.

        Mr. Thomas. Thank you, Mr. Chairman and Senator Hatch. I'd
    like to thank you for inviting me to testify today regarding S.
    1257, the District of Columbia House Voting Rights Act of 2007.
        Now, a number of panelists today have focused on what the
    Founding Fathers might have thought on this issue. What I'd
    like to focus on today is what the Supreme Court has said on
    the various subjects that we're discussing today.
        As everybody has indicated, Article I, Section 2, Clause 1
    of the Constitution provides that the House of Representatives
    shall be composed of ``members of the several States.'' The
    meaning of this clause appears to be relatively clear. For
    instance, in the 1805 case of Hepburn v. Elsey, the Supreme
    Court denied District citizens the right to bring a Federal
    diversity suit against citizens from other States, or from the
    States.
        In a unanimous opinion by Chief Justice John Marshall, the
    court held that such jurisdiction was limited to State citizens
    for the same reason that the District of Columbia was not
    granted House Members or Senators, and this was because the
    plain meaning of the term ``State'' did not include the
    District of Columbia.
        More recently, in the case of Adams v. Clinton in the year
    2000, the Supreme Court summarily affirmed a lower court ruling
    that the District could not be considered a State for purposes
    of having a vote in the House. This conclusion has also been
    consistently reached by a variety of other courts and is
    supported by most commentators.
        Assuming for the moment that this position is correct,
    let's then move to the other question, which is whether
    Congress has the authority someplace else in the Constitution
    to override the apparent limitations of the House
    representation clause.
        In this regard, of course, the argument has been made that
    Congress has plenary authority over the District of Columbia
    under Article I, Section 8, Clause 17, and that this clause is
    an independent authority to grant the District a voting
    representative.
        The case which has been most often cited for this
    proposition is the 1948 Supreme Court case of National Mutual
    Insurance Company v. Tidewater Transfer Company. In Tidewater,
    Congress enacted a statute extending Federal diversity
    jurisdiction to cases between citizens of States and the
    District, even though, as I just mentioned, the Court had
    previously held that the Constitution does not allow for such
    suits. Because the statute was upheld, arguments had been made
    that the same reasoning could be used to grant House Membership
    for a Representative of the District.
        On close examination, however, the Tidewater case does not
    appear to support the constitutionality of S. 1257. While five
    Justices agreed in the result of the Tidewater case, these
    Justices did not agree on their reasoning.
        Three of the Justices, as indicated by Judge Wald, held
    that the DC residents could seek diversity jurisdiction based
    on Congress's power under the District clause. Two Justices
    rejected this argument entirely and instead would have
    overruled the Hepburn case, as I discussed earlier. These are
    the five Justices who were essential to the result in this
    case.
        Since there were four Justices in dissent and they also
    rejected this expansive interpretation of the District clause,
    that means that six of the Tidewater Justices specifically
    rejected the notion that the District clause could be used as a
    means to expand constitutional provisions that were limited to
    States.
        Of even greater concern is that even the three-judge
    plurality emphasized the narrowness of the ruling. Justice
    Jackson noted that ``granting diversity jurisdiction neither
    affected the mechanics of administering justice, nor involved
    the extension or denial of a fundamental right, nor did it
    substantially disturb the balance between the Union and its
    component States.''
        Arguably, allowing non-State representatives a deciding
    vote in Congress on issues of national importance could be seen
    by the Supreme Court as a substantial disturbance to the
    existing federalism structure.
        Now, while there are questions as to whether S. 1257 could
    pass constitutional scrutiny, I should note that most of the
    provisions of S. 1257 could be presented directly to the States
    by the Congress as a constitutional amendment.
        For instance, unlike earlier constitutional proposals which
    have given the District representation in the House, two
    Senators, a full slate of Presidential electors, and the power
    to vote on amendments to the Constitution, a more limited
    constitutional amendment could be crafted to provide the
    District of Columbia one vote in the House.
        Further, in order to achieve the same goal of political
    balance, a statute could be passed granting Utah a fourth vote
    in the House, but making it contingent on the passage of such a
    constitutional amendment.
        Mr. Chairman, that concludes my prepared statement. I'd be
    happy to answer any questions that you or members of the
    committee may have, and I look forward to working with all
    members of the committee and their staff on this issue.
        Senator Feingold. Thanks so much, Mr. Thomas.
        [The prepared statement of Mr. Thomas appears as a
    submission for the record.]
        Senator Feingold. Our final witness, Richard Bress, is a
    partner in the Washington office of Latham & Watkins. He
    practices in the area of appellate and constitutional
    litigation. Before joining Latham, Mr. Bress served in the
    Office of the Solicitor General.
        He received his undergraduate degree and MBA from Cornell
    University and his law degree from Stanford. He was a law clerk
    for Judge Steven Williams on the DC Circuit Court of Appeals,
    and Justice Antonin Scalia.
        Thank you for joining us today. The floor is yours.

    STATEMENT OF RICHARD P. BRESS, PARTNER, LATHAM & WATKINS, LLP,
                            WASHINGTON, D.C.

        Mr. Bress. Thank you, Mr. Chairman, Senator Hatch. I
    appreciate the opportunity to be invited here today on this
    important subject. Others more eloquent than I have addressed
    the policy reasons why this is so important, why this Act
    should be passed. I will not try to elaborate on those.
        Opponents of the bill have stressed, and taken pains,
    really, to stress that they come here in good faith and do not
    oppose the bill for political or policy reasons. Instead, they
    have said that they oppose it because, in their view, it is
    unconstitutional.
        I have studied their arguments with great care. I have read
    all 70 pages, for example, of Professor Turley's submission, as
    well as those filed by others. I have read the legislative
    history that they have read. I have read the history of the
    debates, as they have. I have read the precedents and I have
    studied the text.
        After doing that, I cannot agree with them. I believe that
    this is a difficult question, as Judge Wald noted. I think it
    is a close question and a novel one. But in the end, having
    studied the text, the structure, the precedents, and the
    history, I can't agree that the evidence shows that the Framers
    intentionally disenfranchised, and permanently intentionally
    disenfranchised, the people of the District of Columbia.
        Rather than read from my prepared statement which I'd like
    to submit for the record, I think it would be more fruitful for
    me to comment on a couple of the arguments that we've heard
    here today so as not to repeat others.
        There really are two constitutional provisions that are
    primarily at issue here. There is the Article I, Section 8,
    Clause 17, which is the District clause, and there is the
    Article I, Section 2, which is the composition clause.
        As far as the District clause goes, it is exclusive
    legislative jurisdiction for all cases. It has been described
    as plenary, it's been described as extraordinary.
        It's not unlimited. As Judge Wald noted, certainly Congress
    can't act under that provision of the Constitution in a way
    that would violate express, or even specific, prohibitions
    elsewhere in the Constitution, and I think everyone on this
    panel would agree with that.
        So I think the question that we will come down to is, are
    there any express, or distinct, or specific prohibitions
    against providing the District of Columbia a voting Member of
    the House of Representatives?
        Before I move on to that clause, before I move on to the
    composition clause, which is cited by the opponents of the bill
    as the prohibition that would prevent such an enactment, I
    would like to discuss, briefly, the Tidewater case which has
    been discussed by Mr. Thomas.
        In Tidewater, as this Court heard, five Justices of the
    Supreme Court concluded that Congress had the authority to
    provide District residents with diversity jurisdiction in the
    Federal courts, even though the Constitution says that
    diversity jurisdiction is for suits between citizens of
    different States.
        Now, Mr. Thomas takes a look at that case and understands
    that there's a parallel to this one. He appreciates that in the
    Hepburn case, Chief Justice Marshall noted that the use of the
    word ``State'' in the diversity jurisdiction clause is the same
    use of the ``State'' as in the composition clause.
        I don't disagree with him there, but I guess where I would
    disagree with him is where you go from there, because in the
    Tidewater case five Justices concluded that the diversity
    jurisdiction clause would permit diversity jurisdiction for the
    District upon constitutional enactment. I read Tidewater to
    suggest that the same would be true here.
        Now, as far as the three Justices in the plurality in that
    Case go, I disagree with Mr. Thomas that they wouldn't have
    been with us here. He makes a distinction there between
    fundamental liberties and other matters that can be legislated
    for the District, but actually one of the things that Justice
    Jackson said in that case is that you couldn't use the clause
    ``to invade fundamental freedoms or to substantially disturb
    the balance between the Union and its component States.''
        I would submit to you that this bill would do neither. It
    would actually expand fundamental freedoms and it certainly
    wouldn't substantially change the balance between the States
    and the Federal Union.
        As far as the two concurring members of that court go,
    those two Justices emphasized that the case wasn't about State
    relations and treating the District as a State, it involved
    individual freedoms.
        Once again, I think we have a parallel here in this case.
    This is about the individual right to vote, the vote of the
    people, as has been discussed here, which is the vote for the
    House as opposed to, perhaps, the Senate, which would be more
    of a State representation in the legislature.
        I would like to move on now. I understand I'm getting close
    to the end of my time, but I'd like to address also some of the
    history because Professor Turley has stated that the history is
    incredibly robust, that you can go back to the debates of the
    Constitutional Convention and the ratification debates in the
    States, and my gosh, you'll find everything just as fulsome as
    you have here and as you have had in similar panels before the
    House of Representatives and the Senate.
        I disagree strongly with that. I've gone back and re-read
    all of those materials, which are online and word searchable.
    What you'll find when you do that, is Professor Turley, with
    all due respect, has picked out snippets of history, statements
    made by particular legislators or others that support his
    position in this matter.
        A couple of comments on that. First of all, some of the
    snippets come from anti-Federalists who were prone, because
    they were arguing against the enactment of the Constitution, to
    exaggerate the evils that they believed that the Constitution
    would lead to.
        But another point that I'd like to make is that there's
    plenty among the snippets that cuts the other way. For example,
    you've got evidence from Mr. Madison and others that there was
    a strong belief that the States would take care of the
    liberties of the citizens of the States who were going to end
    up in this Federal District, the ceded part of those States, if
    you will, and that those States would provide for their
    fundamental and essential freedoms.
        We know that in 1790, when those States ceded the territory
    and the session was accepted, which is all that's required
    under the District clause to create the District, from them
    till 1800 the vote continued for those citizens as votes in
    their prior States.
        Now, Alexander Hamilton has been invoked as well here
    against this bill. I think he'd actually be on our side of the
    debate. His amendment, if you look at it closely, presumes that
    the citizens of the States, of the parts of the States that
    were ceded, would continue to vote with those States.
        What his amendment was geared toward, actually, was not
    changing whether they would have the right to vote, but to
    provide that that vote would automatically become a vote as
    citizens of the District when the District attained a certain
    population level.
        Now, it's true that that didn't pass, but that doesn't tell
    you very much about this bill. It certainly doesn't tell you
    that he believed that those citizens wouldn't continue to have
    the right to vote. In fact, it tells you that he thought they
    would. It doesn't tell you that the Constitutional Convention
    or the State ratifiers, as a whole, would have been against
    this, because all it tells you is they didn't believe that it
    should be set up automatically.
        I'd like to address, briefly, why not. I mean, what did we
    have back then when they were acting? Well, first of all, we
    didn't know then where the District would be. There was every
    chance that the District would be inside of a State, and in
    that case it was presumed--I think quite reasonably--that the
    vote would continue for the people in that District along with
    the State.
        Second, what we know, is there weren't very many people in
    areas that were 10 x 10 square back then. In fact, the only
    city in America at that point in time that would have had
    enough residents in it to qualify for a vote as a District or
    as a new State would have been New York City. New York City had
    about 34,000 people in it. You needed 30,000 to get a voting
    district, or 60,000 to be admitted as a State.
        So there was really no reason for the Framers to expect
    that there would be enough people at that time to justify a
    seat for the District qua District.
        Another thing that you'll see as you move a little bit
    forward in history, is Professor Turley addressed what happened
    in 1800 and later. Now, certainly in 1800 when Congress took
    control and the Federal Government took control of the
    District, the legislation that they enacted took away the vote
    of the people who were then living in the District. And it's
    been suggested that this and the failure to remedy it shows
    that Congress lacks the authority to remedy it today.
        I guess what I'd say to that, are two things. No. 1, there
    was still a very small number of people in the District. There
    were 8,000 people in the District. That was 22,000 people too
    few to qualify for their own vote.
        No. 2, it was widely--and I think reasonably--assumed that
    the 8,000 people in the District would be mingling so
    frequently with the Members of Congress that their views would
    be taken into account.
        Today, of course, things are far different: there's 560,000
    or so people in the District and, as much as they'd like to
    mingle with you, the chances of that are far and few between.
        [Laughter.]
        So I finished looking at the text, the precedent, and the
    history, and what I come out of it with is really an utter
    failure to see intent of the Framers to deprive, permanently
    deprive, the citizens, the residents of the District of the
    right to vote. It's that intent that I would have to find in
    here to conclude that Congress lacks the authority, under the
    District clause, to remedy this great tragedy.
        Thank you.
        Senator Feingold. Thank you, Mr. Bress.
        [The prepared statement of Mr. Bress appears as a
    submission for the record.]
        Senator Feingold. This has been just an excellent panel. I
    thank all of you. I would like to include in the record the
    statement of Senator Kennedy on this matter, without objection.
        [The prepared statement of Senator Kennedy appears as a
    submission for the record.]
        Senator Feingold. Senator Hatch has a pressing matter that
    he needs to get to, but would like to ask a round of questions
    before I do, and I'm happy to have him do that.
        Senator Hatch, we'll do 7-minute rounds.
        Senator Hatch. Well, thank you, Senator. Thank you for your
    graciousness, which you always show. I'm very grateful to you.
        Mr. Bress, since you finished, let me ask a few questions
    of you. I appreciate your acknowledging that this is a serious
    constitutional question, as I think all of you have. You've
    been analyzing and writing about the legal issues related to
    District representation in the House for several years, as I
    understand it, so you know that there are, indeed, arguments on
    both sides.
        Mr. Elwood argues that the language in the District
    representation clause is, as he puts it, ``unambiguous''. You
    say in your statement that the language in that clause is
    ``indeterminate''. Which is it? Doesn't the word ``States''
    mean ``States''?
        Mr. Bress. Your Honor, I do believe that the word ``State''
    means ``States''. I guess the question isn't whether ``States''
    in that provision means a State, but rather whether that clause
    evinces a desire to prohibit Congress from acting under the
    District clause to permit a District Representative.
        Senator Hatch. We certainly acted to have a constitutional
    delegate who has a right to vote, as long as her vote doesn't
    change anything, as long as it doesn't mean anything.
        Mr. Bress. Indeed, Senator Hatch. Moreover, as Judge Wald--
        Senator Hatch. And that's gone on for quite a while.
        Mr. Bress. It has been. And as Judge Wald noted, of course,
    overseas residents, who are not by any common understanding of
    the language, nor of the laws of the States, residents of the
    States any longer are still permitted to vote as residents of
    the State under that provision.
        So if that provision were so clear and so unambiguous, you
    wouldn't find that. Plus, of course, residents of the Federal
    enclaves whom the States have already said are not eligible to
    vote for State legislators, nonetheless, have been found by the
    Supreme Court to be sufficiently residents to qualify under
    that clause. So, no. I guess I would submit, it's not as clear
    as all of that, as constitutional law often isn't.
        Senator Hatch. Well, America's Founders clearly made a
    choice not to have the Nation's Capital be one of its
    constituent parts, so they created a District separate from any
    of the States in the Union.
        Now, one of the important questions that we have to wrestle
    with is whether, in doing that, America's Founders also
    intended that the citizens who should reside, who would reside
    in the District, would be disenfranchised without House
    representation that those citizens would enjoy if they lived
    anywhere else.
        Now, how did the Founders expect District residents would
    be treated with respect to representation? Did they intend that
    because the District is not a State, District residents would
    be without House representation?
        Mr. Bress. No, Senator Hatch. I'm sorry, I keep saying
    ``Your Honor'' because I'm used to being in court.
        [Laughter.]
        I don't believe they did. As I've noted earlier, I think my
    best reading--and again, this is murky and there aren't clear
    answers. But my best reading of the history is that they
    supposed that the States, the ceding States, would take care of
    those who were in the land that was being ceded for the
    District.
        And once again, if we were talking about a District that
    was in the middle of a State, I don't think there would be any
    question that those citizens would have continued to vote with
    the State, as citizens who live in Federal enclaves do today if
    they're in the middle of a State.
        I think things got a bit complicated when it turned out
    later on, after the Constitution was enacted, that the District
    straddled two States and provision wasn't made at that time to
    continue voting after the Federal Government took over in 1800.
        As I've noted before, I think that there were political
    reasons why at that point those in Congress and those who had
    been Framers didn't push harder for a law that would give
    District residents the vote. I think both the small size of the
    District, 8,000 people, certainly wasn't enough in people's
    minds to permit continued voting for the District as District
    residents, qua District residents.
        I really do believe that the small number of people in the
    District, and the historical materials bear this out, gave
    people confidence that those serving in this body and serving
    in the House of Representatives would be taking into account
    the views of those who lived in the District.
        I just don't think those things hold true today. Neither of
    them do. And, no, I don't read the Framers as ever evidencing a
    view that 500,000-plus people living in the Nation's Capital
    would be denied the right to vote.
        Senator Hatch. Well, let me ask you a related question.
    Some have argued--and I think perhaps Professor Turley, who's
    with us today, would be in this camp--that rejected of
    Alexander Hamilton's proposed constitutional amendment to give
    the District representation in the House amounted to a
    deliberate rejection of such representation.
        I want to know if you agree with that, and did America's
    Founders affirmatively intend that citizens living in the
    District would have no representation in Congress?
        Mr. Bress. No. I actually strongly disagree with that.
    Having read Alexander Hamilton's amendment, I think it's
    awfully clear what he was trying to accomplish. Hamilton took,
    in the amendment, as a given that the residents of the District
    would have the ability to continue to vote with their former
    States, and all that his amendment would have accomplished is
    to automatically permit them to vote as residents of the
    Federal District when the Federal District attained a certain
    size.
        So, No. 1, it becomes quite clear that being District
    residents, in Alexander Hamilton's view, was not enough to mean
    that they wouldn't get the right to vote. So there you've got
    this sort of square first point, which is the fact that they're
    residents of the District and not of a State wouldn't have been
    enough.
        Now, there was the second part where he was trying to enact
    a provision that would have given District residents the right,
    qua District residents, to vote once the District attained a
    certain size. That didn't pass, but it's very hard to get much
    out of that. What you have there is a proposed amendment at a
    State ratifying convention that doesn't pass, with no
    legislative history one way or the other as to why not. I think
    it's very hard to draw conclusions from that.
        Senator Hatch. Well, the District of Columbia is not the
    only place that does not have representation--or the status of
    a State, let's put it that way--in which American citizens
    live. Some have argued that giving full House representation to
    District residents would necessarily lead to similar privileges
    for other entities, such as territories. I believe Mr. Thomas
    from the Congressional Research Service, who is with us today,
    I think you make that argument as well.
        I'm not sure this is a constitutional argument, that
    Congress somehow is foreclosed from granting the District of
    Columbia House representation because doing so would lead to
    unintended consequences. I think it's more of a practical
    argument.
        Mr. Bress. I would agree with you completely, Senator.
        Senator Hatch. Well, could you respond to that? And will
    granting the District representation necessarily lead to
    granting the territories representation?
        Mr. Bress. Your Honor, I would agree with you that it's
    primarily--Your Honor. Senator Hatch.
        Senator Hatch. That's OK. I like it.
        [Laughter.]
        Mr. Bress. At any rate, I would agree with you entirely,
    that it's primarily a practical question. Certainly the
    imperatives toward granting the District residents the right to
    vote do not exist equally with regard to the citizens of the
    territories. The citizens of the District are unique in being
    subject to the draft, to Federal income tax, and not being able
    to vote.
        The District is also unique as having once been among the
    United States, plural, and having been carved out of them. I
    don't believe that the same political imperatives exist for it.
        Also, of course, the constitutional provision is different,
    whereas the provision that we're discussing, the District
    clause, provides for exclusive legislative jurisdiction, the
    clause with respect to the territories says ``to dispose of and
    make all needful rules and regulations respecting the
    territory.''
        I don't know, and I won't tell you now, how exactly that
    ought to be interpreted with regard to potential voting rights
    for the territories. It's not a subject that I've studied
    closely. But it is different, and I don't think we can
    necessarily draw the same conclusions from it.
        Senator Hatch. Well, I have questions for each of you,
    especially for Turley, over here.
        [Laughter.]
        And Thomas, too. This has been a very good panel.
        Mr. Chairman, you've done an excellent job in getting
    really good people here. We appreciate all of you, each and
    every one of you. I think we've had some very cogent remarks.
        I particularly wanted to go after Mr. Elwood here today,
    but I'll spare you that, because I personally believe that I
    wouldn't sign on to something like this if I didn't think there
    was enough constitutional justification for it.
        But I do agree that there are legitimate questions that
    have been raised, and would be raised, that I knew of as well.
    But I think, on balance, I agree with you, Professor Ogletree,
    it's time to right this wrong. We can do it this way.
        Now, if the court chooses later to say we're wrong, I can
    live with that, if that's the way it is. I personally don't
    believe they will. I think it's worthwhile pursuing.
        Judge Wald, it's so nice to see you again. We appreciate
    each and every one of you. You've made great contributions to
    this committee on this very important subject, something that I
    feel very deeply about. I hope that we're successful in passing
    this.
        And if we're wrong, Professor Turley, Mr. Elwood, Mr.
    Thomas, you'll win in the end. But if we're right, you will go
    down in the history thinking, ``How in the hell could I be so
    stupid?''
        [Laughter.]
        No, no.
        Senator Feingold. He was kidding.
        Senator Hatch. I am only kidding.
        Senator Feingold. For the record.
        Senator Hatch. These are very, very bright people and I
    have great respect for all of you.
        Senator Feingold. Thank you, Senator Hatch.
        Senator Hatch. Thank you.
        Senator Feingold. We were doing so well.
        [Laughter.]
        Thank you for your involvement with this issue and for your
    involvement with this hearing.
        Senator Hatch. I am going to have to pay for that out in
    Utah.
        [Laughter.]
        Senator Feingold. Yes, I think so.
        [Laughter.]
        Let me ask some questions. Mr. Elwood, as you know, the
    Justice Department, particularly the Solicitor General, is
    responsible for defending duly enacted Federal statutes against
    constitutional challenges.
        In 2001, I had occasion to ask the nominee for Solicitor
    General at that time, Ted Olson, about the Department's
    responsibility in cases where it had doubts about the
    constitutionality of the statute.
        He had written the following in a Law Review article in
    1982: ``We in the Justice Department must also defend the
    constitutionality of congressional enactments, whether we like
    them or not, in almost all cases. We are the Government's
    lawyer, so even if we disagree with the policies of the law and
    even if we feel that it is of questionable constitutionality,
    we must enforce it and we must defend it.''
        I asked him if he still held that view and he answered as
    follows: ``Yes, I do. And there are, of course, circumstances,
    and they were mentioned by Attorney General Ashcroft and they
    have been mentioned by other people in the Department of
    Justice from time to time.
        ``For example, situations where the Executive's power
    involved or where something is clearly unconstitutional or
    there's no reasonable defense that can be mounted with respect
    to a statute because we have an obligation to the courts,
    especially the U.S. Supreme Court, to make arguments that we
    believe are legitimate arguments.
        ``But I strongly believe,'' he continued, ``as a matter of
    separation of powers and the responsibility of the Department,
    that there's a heavy burden of presumption that the statute is
    constitutional. We must be vigorous advocates for the Congress
    when we go before the courts,'' he said.
        So my first question to you is, do you have any doubt that
    the Department of Justice would defend this statute in court if
    it is passed by the House and Senate and signed by the
    President?
        Mr. Elwood. Well, to begin with, I'd just like to--if I can
    preface my remarks, I just want to make clear that the
    disagreements that the Department has with this bill, again,
    are not based on policy at all, they're simply based on matters
    of constitutional principle, which we've had for a while.
        Obviously I can't commit the Justice Department in advance
    to what its position would be, but it is true that the
    Department ordinarily defends enactments of Congress, if there
    are reasonable arguments to be made in its favor.
        Certainly Mr. Olson--I worked with him--defended a lot of
    bills that he might not have agreed with on policy grounds, but
    that wasn't the inquiry. There have been other times when the
    Department didn't defend enactments of Congress, such as, under
    the Clinton administration they didn't defend the Miranda
    override bill.
        Senator Feingold. Well, let's use your exact language here.
    Is it your view that a reasonable argument in favor of the
    constitutionality of the statute can be made?
        Mr. Elwood. It's kind of a hard position for me, a hard
    question for me to answer, only because the Department has
    taken the position for as long as it has. But certainly
    colorable arguments have been mustered on the other side. I
    think they're ultimately unpersuasive.
        But I think the fact that Congress, both Houses of
    Congress, would have underwritten them would certainly be a
    factor that the Solicitor General would take into consideration
    in determining whether to defend the bill on appeal.
        Senator Feingold. Well, I must say I was hoping for a
    stronger answer. Mr. Olson was a clear opponent of the McCain-
    Feingold legislation, but when I asked him about whether or not
    he would vigorously defend that, he had no hesitation and said
    he would.
        I think you know the record. Not only did he disagree with
    the statute itself, but he ended up doing a brilliant job of
    arguing in favor of it before the U.S. Supreme Court.
        Mr. Elwood. In fairness--
        Senator Feingold. So I think it is important to reassure
    the committee that I think obviously there are arguments
    against this, but the notion that there are not reasonable
    arguments in favor of it strikes me as problematic.
        Mr. Elwood. The thing is, I just want to make the point
    that it's easier for him to say that than for me because he's
    in a much better position to know. He is the boss and I am
    several rungs down and one office over, essentially.
        But it is true that there are arguments to be made, very
    colorable arguments, and that it is always a very important
    thing to the executive branch that Congress was persuaded by
    these arguments themselves because we understand you take your
    obligations seriously. You take the same oath that we do. If
    you think it's constitutional, that's definitely something that
    they weight very heavily.
        Senator Feingold. OK. Mr. Elwood, one argument you made
    struck me and I'd like to followup on it. You noted that the
    vote for DC permitted by this bill can easily be repealed by a
    future Congress and is of dubious constitutionality, suggesting
    that statehood or a constitutional amendment would be a more
    solid way to get representation in the District.
        Does this administration support statehood or a
    constitutional amendment?
        Mr. Elwood. Again, I'm afraid that my answer is going to be
    unsatisfying to you. I'm in the Office of Legal Counsel. We're
    law nerds. I can't say anything about policy matters.
        Senator Feingold. Are you aware of any statement from the
    administration supporting either statehood or a constitutional
    amendment?
        Mr. Elwood. I think that I can only say what I know has
    been basically run up the flag pole through the whole OMB
    process, and that is that if representation is going to be
    given we think it should be given in a manner that is
    consistent with the Constitution. Certainly you cannot impugn
    the amendment process or the--
        Senator Feingold. But the administration has indicated no
    support for either statehood or a constitutional amendment. Is
    that correct?
        Mr. Elwood. I don't know that it has taken a position, but
    we are not a policy shop, we're purely questions of law.
        Senator Feingold. Are you aware of anything that the
    administration has done at all to try to secure representation
    for the District? Are you aware of any?
        Mr. Elwood. I am not aware. But again, it is a matter of
    policy and I am just completely questions of law.
        Senator Feingold. I'm simply going with regard to the scope
    of your knowledge, but I think it does undercut that argument a
    bit when you realize the actual record of the administration on
    that.
        Mr. Elwood. Well, I will note, though, that the Carter
    administration and the Johnson administration, both of which
    were ardently in favor of voting for the District, both took
    the position that it couldn't be accomplished by simple
    legislation and that both--
        Senator Feingold. That it could not be accomplished?
        Mr. Elwood. Could not be accomplished by simple
    legislation, it had to be done by amendment.
        Senator Feingold. My problem here is that it rings a little
    more hollow with an administration that has not advanced those
    positions, but it certainly would be consistent from a
    constitutional point of view.
        I'm going to let Judge Wald respond.
        Judge Wald. I simply wanted to reiterate, Senator, that,
    again, to the best of my memory--and I hope that's not a
    dubious phrase any more, going back 30 years--in the
    discussions we had about my testimony on the constitutional
    amendment in 1978, it was before the House but it was in
    conjunction with John Harmon, who then headed the Office of
    Legal Counsel. We never discussed this option of the authority.
        Senator Feingold. Judge, were you done there? Were you done
    with your response?
        Judge Wald. Yes.
        Senator Feingold. OK. Go ahead, Mr. Elwood.
        Mr. Elwood. I think that if they didn't address it, this
    particular thing, it was not because of lack of awareness of
    the District Clause. For example, this is Judge Wald's
    testimony. She said, ``We do see Article I, Section 8, Clause
    17 as according Congress the power to exercise exclusive
    legislation in all cases whatsoever over such District as may
    become the seat of Government of the United States as an
    obstacle to the unilateral decision by Congress to convert the
    District into a State.''
        Now, they were addressing it in a very different context
    because when you're talking about statehood, the argument is
    that because the District clause clearly indicates that they
    didn't intend it to be a State, you can't just move it in like
    you would any other State by simple legislation.
        But the only reason I note that, is just to say everyone
    was aware of the District clause and people before just didn't
    think, well, of course we could use this to vote the State in
    by simple legislation.
        I think there's a reason for that, and that is, it just
    hasn't been read that way. It hasn't been read as a way of
    enacting essentially laws of national scope, laws that can
    shape the whole structure of our government.
        In fact, James Madison, who people are constantly invoking
    him, said that this clause, the District clause, could not be
    used as a fulcrum basically to enact national legislation.
        Senator Feingold. Judge Wald?
        Judge Wald. Well, I was just going to point out that the
    sentence that he read from my testimony, and I'm aware of it,
    was in the context of the particular four different
    alternatives that we were discussing, not one of which--now, it
    may be that John Harmon and others had in the back of their
    mind this District clause, but I have to tell you that, in all
    the discussions that I recall, and we wrote the testimony out
    of my Office of Legislative Affairs, maybe it was our
    shortcomings, but this particular option was never discussed.
    Maybe in some other forum but not on the part of the House
    hearings I went to, nor inside the Department which looked at
    my testimony.
        It was entirely with respect--I think one could go
    historically and look at a lot of examples, and Senator Leahy
    raised one, where all of a sudden a clause which has sort of
    been slumbering there, like the commander in chief clause,
    suddenly is raised to encompass all sorts of things that none
    of us had the remotest idea, and that even the Founders had
    then said Alexander Hamilton--no, that just means--
        Senator Feingold. In fact, that's an area where I have
    quoted Professor Turley.
        Judge Wald. Yes. That just means he can tell where the
    troops should go. So I don't think I have this quote right, but
    the old quote about, the absence of evidence is not evidence of
    absence. Whatever the right quote is, I don't think you can
    infer from that that everybody was aware of, and dismissed, the
    argument which is being pursued here.
        Senator Feingold. Thank you, Judge.
        Mr. Ogletree, virtually everyone agrees that the District's
    lack of representation is manifestly unjust. Given the
    evolution of voting rights in this country's history and the
    history of racial discrimination, what is the appropriate way
    to analyze the constitutionality of legislation intended to
    correct this injustice?
        Mr. Ogletree. Senator Feingold, I think it's simple. If we
    look at our history of the pervasive denial of basic
    fundamental rights, not based on any sharp constitutional
    analysis but simply based on race, we will see the irony.
        Let's take voting rights. African-Americans have been on
    this land since 1607, even before the Nation was founded, and
    not until 1965, 300-plus years, 360 years, did African-
    Americans finally have, universally, the right to vote. It was
    implied, it was suggested, but it didn't happen until 1965.
        Even after 1965, in the last 42 years we see as well, with
    the reauthorization of the 2006 Voting Rights Act, that it
    wasn't applied equally even after we had a constitutional
    amendment to say that it was applied.
        The reality is that there is a difference between what we
    profess to offer citizens as a right and what we actually offer
    to African-Americans. It is a pervasive failure of equality. We
    saw that in civil rights legislation that had to be enacted for
    African-Americans. We saw that in voting rights, that
    legislation had to be enacted. We see that in Congress now,
    even addressing the issue of voting.
        I think, as you think about this city and the citizens who
    are poor, who are struggling, who pay the same taxes and fight
    in the same war and don't get any basic fundamental rights,
    that the only thing this Congress can do as a moral and legal
    response is to give them the basic rights, not more, but not
    less rights than any other citizen in America.
        Senator Feingold. Well, thank you very much. I appreciate
    everyone's participation.
        Anyone want to make any closing remarks, very quickly?
    Professor Turley?
        Professor Turley. Thank you. I just wanted to note two
    things about what was stated previously about the history.
    First of all, in terms of the ambiguity of Hamilton's amendment
    on July 22, 1788, Mr. Bress says he has a hard time really
    seeing how it was relevant, Hamilton said that he objected to
    the status of the residents and said that ``the inhabitants of
    said District shall be entitled,'' under his amendment, ``to
    the like essential rights as the other inhabitants of the
    United States in general.''
        I want to make perfectly clear, he wasn't talking about
    their having any rights with previous States. He was talking
    about the fact that they would be disenfranchised, and I fail
    to see the ambiguity. Madison, who has also been quoted, talked
    about a municipal legislature for local purposes. He thought
    that it would be a good idea if the District had ``municipal
    legislature for local purposes''.
        Now, finally, if you look at the record you'll see
    references not just to the composition clause, but also the
    District clause. When the District clause comes up it is
    repeatedly referred to as a matter that deals administratively
    internally with Congress's authority.
        That argument was made forward by Pendleton, who was the
    president of the Virginia Ratification Convention, who assured
    all the other delegates, when they saw the District clause,
    that it would have no effect outside its borders. It is purely
    internal.
        That's why all these examples of, but we can tax them, we
    can send residents to war, you can do a lot of things. That's
    where it is majestic: you can do most anything inside the
    District internally.
        What you're doing now, is you're using an internal power to
    affect the status, not of other States, of States, an external
    application of that District clause. That's where I think the
    record is clear, that you cannot go beyond that line.
        Senator Feingold. Judge Wald?
        Judge Wald. I just want to make a quickie here. It seems to
    me that the line you draw gets very fuzzy with the Tidewater
    case because you take the District representation, plurality,
    given, and you say the District clause and you say that enables
    us to require Article III Federal courts throughout the
    country, which normally receive the jurisdiction over its
    citizens between two different States but not prior to this,
    not citizens and District residents, to they now must accept
    the cases of citizens and the District residents. It seems to
    me that does take the District clause outside of the strictly
    District residents. I don't know if the Senator will give you
    reply time.
        Senator Feingold. Very quickly.
        Professor Turley. Bless you, Senator. I think if you look
    at that, you'll see that six of those Justices do not seem to
    support the position. But if you look at Lawboro in 1820, the
    Supreme Court says quite clearly, ``DC relinquished the right
    to representation.'' That is a direct quote of the Supreme
    Court on the matter.
        Senator Feingold. Thank you very much.
        The record for this hearing will remain open for one week,
    during which time we will accept additional materials from our
    witnesses today or statements from other individuals on the
    topic of this hearing. In addition, any written questions that
    Senators may have for the witnesses should be submitted by one
    week from now.
        Again, thank you all for just an excellent job.
        This hearing is adjourned.
        [Whereupon, at 4:03 p.m. the hearing was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

    [GRAPHIC] [TIFF OMITTED] 43232.001

    [GRAPHIC] [TIFF OMITTED] 43232.002

    [GRAPHIC] [TIFF OMITTED] 43232.003

    [GRAPHIC] [TIFF OMITTED] 43232.004

    [GRAPHIC] [TIFF OMITTED] 43232.005

    [GRAPHIC] [TIFF OMITTED] 43232.006

    [GRAPHIC] [TIFF OMITTED] 43232.007

    [GRAPHIC] [TIFF OMITTED] 43232.008

    [GRAPHIC] [TIFF OMITTED] 43232.009

    [GRAPHIC] [TIFF OMITTED] 43232.010

    [GRAPHIC] [TIFF OMITTED] 43232.011

    [GRAPHIC] [TIFF OMITTED] 43232.012

    [GRAPHIC] [TIFF OMITTED] 43232.013

    [GRAPHIC] [TIFF OMITTED] 43232.014

    [GRAPHIC] [TIFF OMITTED] 43232.015

    [GRAPHIC] [TIFF OMITTED] 43232.016

    [GRAPHIC] [TIFF OMITTED] 43232.017

    [GRAPHIC] [TIFF OMITTED] 43232.018

    [GRAPHIC] [TIFF OMITTED] 43232.019

    [GRAPHIC] [TIFF OMITTED] 43232.020

    [GRAPHIC] [TIFF OMITTED] 43232.021

    [GRAPHIC] [TIFF OMITTED] 43232.022

    [GRAPHIC] [TIFF OMITTED] 43232.023

    [GRAPHIC] [TIFF OMITTED] 43232.024

    [GRAPHIC] [TIFF OMITTED] 43232.025

    [GRAPHIC] [TIFF OMITTED] 43232.026

    [GRAPHIC] [TIFF OMITTED] 43232.027

    [GRAPHIC] [TIFF OMITTED] 43232.028

    [GRAPHIC] [TIFF OMITTED] 43232.029

    [GRAPHIC] [TIFF OMITTED] 43232.030

    [GRAPHIC] [TIFF OMITTED] 43232.031

    [GRAPHIC] [TIFF OMITTED] 43232.032

    [GRAPHIC] [TIFF OMITTED] 43232.033

    [GRAPHIC] [TIFF OMITTED] 43232.034

    [GRAPHIC] [TIFF OMITTED] 43232.035

    [GRAPHIC] [TIFF OMITTED] 43232.036

    [GRAPHIC] [TIFF OMITTED] 43232.037

    [GRAPHIC] [TIFF OMITTED] 43232.038

    [GRAPHIC] [TIFF OMITTED] 43232.039

    [GRAPHIC] [TIFF OMITTED] 43232.040

    [GRAPHIC] [TIFF OMITTED] 43232.041

    [GRAPHIC] [TIFF OMITTED] 43232.042

    [GRAPHIC] [TIFF OMITTED] 43232.043

    [GRAPHIC] [TIFF OMITTED] 43232.044

    [GRAPHIC] [TIFF OMITTED] 43232.045

    [GRAPHIC] [TIFF OMITTED] 43232.046

    [GRAPHIC] [TIFF OMITTED] 43232.047

    [GRAPHIC] [TIFF OMITTED] 43232.048

    [GRAPHIC] [TIFF OMITTED] 43232.049

    [GRAPHIC] [TIFF OMITTED] 43232.050

    [GRAPHIC] [TIFF OMITTED] 43232.051

    [GRAPHIC] [TIFF OMITTED] 43232.052

    [GRAPHIC] [TIFF OMITTED] 43232.053

    [GRAPHIC] [TIFF OMITTED] 43232.054

    [GRAPHIC] [TIFF OMITTED] 43232.055

    [GRAPHIC] [TIFF OMITTED] 43232.056

    [GRAPHIC] [TIFF OMITTED] 43232.057

    [GRAPHIC] [TIFF OMITTED] 43232.058

    [GRAPHIC] [TIFF OMITTED] 43232.059

    [GRAPHIC] [TIFF OMITTED] 43232.060

    [GRAPHIC] [TIFF OMITTED] 43232.061

    [GRAPHIC] [TIFF OMITTED] 43232.062

    [GRAPHIC] [TIFF OMITTED] 43232.063

    [GRAPHIC] [TIFF OMITTED] 43232.064

    [GRAPHIC] [TIFF OMITTED] 43232.065

    [GRAPHIC] [TIFF OMITTED] 43232.066

    [GRAPHIC] [TIFF OMITTED] 43232.067

    [GRAPHIC] [TIFF OMITTED] 43232.068

    [GRAPHIC] [TIFF OMITTED] 43232.069

    [GRAPHIC] [TIFF OMITTED] 43232.070

    [GRAPHIC] [TIFF OMITTED] 43232.071

    [GRAPHIC] [TIFF OMITTED] 43232.072

    [GRAPHIC] [TIFF OMITTED] 43232.073

    [GRAPHIC] [TIFF OMITTED] 43232.074

    [GRAPHIC] [TIFF OMITTED] 43232.075

    [GRAPHIC] [TIFF OMITTED] 43232.076

    [GRAPHIC] [TIFF OMITTED] 43232.077

    [GRAPHIC] [TIFF OMITTED] 43232.078

    [GRAPHIC] [TIFF OMITTED] 43232.079

    [GRAPHIC] [TIFF OMITTED] 43232.080

    [GRAPHIC] [TIFF OMITTED] 43232.081

    [GRAPHIC] [TIFF OMITTED] 43232.082

    [GRAPHIC] [TIFF OMITTED] 43232.083

    [GRAPHIC] [TIFF OMITTED] 43232.084

    [GRAPHIC] [TIFF OMITTED] 43232.085

    [GRAPHIC] [TIFF OMITTED] 43232.086

    [GRAPHIC] [TIFF OMITTED] 43232.087

    [GRAPHIC] [TIFF OMITTED] 43232.088

    [GRAPHIC] [TIFF OMITTED] 43232.089

    [GRAPHIC] [TIFF OMITTED] 43232.090

    [GRAPHIC] [TIFF OMITTED] 43232.091

    [GRAPHIC] [TIFF OMITTED] 43232.092

    [GRAPHIC] [TIFF OMITTED] 43232.093

    [GRAPHIC] [TIFF OMITTED] 43232.094

    [GRAPHIC] [TIFF OMITTED] 43232.095

    [GRAPHIC] [TIFF OMITTED] 43232.096

    [GRAPHIC] [TIFF OMITTED] 43232.097

    [GRAPHIC] [TIFF OMITTED] 43232.098

    [GRAPHIC] [TIFF OMITTED] 43232.099

    [GRAPHIC] [TIFF OMITTED] 43232.100

    [GRAPHIC] [TIFF OMITTED] 43232.101

    [GRAPHIC] [TIFF OMITTED] 43232.102

    [GRAPHIC] [TIFF OMITTED] 43232.103

    [GRAPHIC] [TIFF OMITTED] 43232.104

    [GRAPHIC] [TIFF OMITTED] 43232.105

    [GRAPHIC] [TIFF OMITTED] 43232.106

    [GRAPHIC] [TIFF OMITTED] 43232.107

    [GRAPHIC] [TIFF OMITTED] 43232.108

    [GRAPHIC] [TIFF OMITTED] 43232.109

    [GRAPHIC] [TIFF OMITTED] 43232.110

    [GRAPHIC] [TIFF OMITTED] 43232.111

    [GRAPHIC] [TIFF OMITTED] 43232.112

    [GRAPHIC] [TIFF OMITTED] 43232.113

    [GRAPHIC] [TIFF OMITTED] 43232.114

    [GRAPHIC] [TIFF OMITTED] 43232.115

    [GRAPHIC] [TIFF OMITTED] 43232.116

    [GRAPHIC] [TIFF OMITTED] 43232.117

    [GRAPHIC] [TIFF OMITTED] 43232.118

    [GRAPHIC] [TIFF OMITTED] 43232.119

    [GRAPHIC] [TIFF OMITTED] 43232.120

    [GRAPHIC] [TIFF OMITTED] 43232.121

    [GRAPHIC] [TIFF OMITTED] 43232.122

    [GRAPHIC] [TIFF OMITTED] 43232.123

    [GRAPHIC] [TIFF OMITTED] 43232.124

    [GRAPHIC] [TIFF OMITTED] 43232.125

    [GRAPHIC] [TIFF OMITTED] 43232.126

    [GRAPHIC] [TIFF OMITTED] 43232.127

    [GRAPHIC] [TIFF OMITTED] 43232.128

    [GRAPHIC] [TIFF OMITTED] 43232.129

    [GRAPHIC] [TIFF OMITTED] 43232.130

    [GRAPHIC] [TIFF OMITTED] 43232.131

    [GRAPHIC] [TIFF OMITTED] 43232.132

    [GRAPHIC] [TIFF OMITTED] 43232.133

    [GRAPHIC] [TIFF OMITTED] 43232.134

    [GRAPHIC] [TIFF OMITTED] 43232.135

    [GRAPHIC] [TIFF OMITTED] 43232.136

    [GRAPHIC] [TIFF OMITTED] 43232.137

    [GRAPHIC] [TIFF OMITTED] 43232.138

    [GRAPHIC] [TIFF OMITTED] 43232.139

    [GRAPHIC] [TIFF OMITTED] 43232.140

    [GRAPHIC] [TIFF OMITTED] 43232.141

    [GRAPHIC] [TIFF OMITTED] 43232.142

    [GRAPHIC] [TIFF OMITTED] 43232.143

    [GRAPHIC] [TIFF OMITTED] 43232.144

    [GRAPHIC] [TIFF OMITTED] 43232.145

    [GRAPHIC] [TIFF OMITTED] 43232.146

    [GRAPHIC] [TIFF OMITTED] 43232.147

    [GRAPHIC] [TIFF OMITTED] 43232.148

    [GRAPHIC] [TIFF OMITTED] 43232.149

    [GRAPHIC] [TIFF OMITTED] 43232.150

    [GRAPHIC] [TIFF OMITTED] 43232.151

    [GRAPHIC] [TIFF OMITTED] 43232.152

    [GRAPHIC] [TIFF OMITTED] 43232.153

    [GRAPHIC] [TIFF OMITTED] 43232.154

    [GRAPHIC] [TIFF OMITTED] 43232.155

    [GRAPHIC] [TIFF OMITTED] 43232.156

    [GRAPHIC] [TIFF OMITTED] 43232.157

    [GRAPHIC] [TIFF OMITTED] 43232.158

    [GRAPHIC] [TIFF OMITTED] 43232.159

    [GRAPHIC] [TIFF OMITTED] 43232.160

    [GRAPHIC] [TIFF OMITTED] 43232.161

    [GRAPHIC] [TIFF OMITTED] 43232.162

    [GRAPHIC] [TIFF OMITTED] 43232.163

    [GRAPHIC] [TIFF OMITTED] 43232.164

    [GRAPHIC] [TIFF OMITTED] 43232.165

    [GRAPHIC] [TIFF OMITTED] 43232.166

    [GRAPHIC] [TIFF OMITTED] 43232.167

    [GRAPHIC] [TIFF OMITTED] 43232.168

    [GRAPHIC] [TIFF OMITTED] 43232.169

    [GRAPHIC] [TIFF OMITTED] 43232.170

    [GRAPHIC] [TIFF OMITTED] 43232.171

    [GRAPHIC] [TIFF OMITTED] 43232.172

    [GRAPHIC] [TIFF OMITTED] 43232.173

    [GRAPHIC] [TIFF OMITTED] 43232.174

    [GRAPHIC] [TIFF OMITTED] 43232.175

    [GRAPHIC] [TIFF OMITTED] 43232.176

    [GRAPHIC] [TIFF OMITTED] 43232.177

    [GRAPHIC] [TIFF OMITTED] 43232.178

    [GRAPHIC] [TIFF OMITTED] 43232.179

    [GRAPHIC] [TIFF OMITTED] 43232.180

    [GRAPHIC] [TIFF OMITTED] 43232.181

    [GRAPHIC] [TIFF OMITTED] 43232.182

    [GRAPHIC] [TIFF OMITTED] 43232.183

    [GRAPHIC] [TIFF OMITTED] 43232.184

    [GRAPHIC] [TIFF OMITTED] 43232.185

    [GRAPHIC] [TIFF OMITTED] 43232.186

    [GRAPHIC] [TIFF OMITTED] 43232.187

    [GRAPHIC] [TIFF OMITTED] 43232.188

    [GRAPHIC] [TIFF OMITTED] 43232.189

    [GRAPHIC] [TIFF OMITTED] 43232.190

    [GRAPHIC] [TIFF OMITTED] 43232.191

    [GRAPHIC] [TIFF OMITTED] 43232.192

    [GRAPHIC] [TIFF OMITTED] 43232.193

    [GRAPHIC] [TIFF OMITTED] 43232.194

    [GRAPHIC] [TIFF OMITTED] 43232.195

    [GRAPHIC] [TIFF OMITTED] 43232.196

    [GRAPHIC] [TIFF OMITTED] 43232.197

    [GRAPHIC] [TIFF OMITTED] 43232.198

    [GRAPHIC] [TIFF OMITTED] 43232.199

    [GRAPHIC] [TIFF OMITTED] 43232.200

    [GRAPHIC] [TIFF OMITTED] 43232.201

    [GRAPHIC] [TIFF OMITTED] 43232.202

    [GRAPHIC] [TIFF OMITTED] 43232.203

    [GRAPHIC] [TIFF OMITTED] 43232.204

    [GRAPHIC] [TIFF OMITTED] 43232.205

    [GRAPHIC] [TIFF OMITTED] 43232.206

    [GRAPHIC] [TIFF OMITTED] 43232.207

    [GRAPHIC] [TIFF OMITTED] 43232.208

    [GRAPHIC] [TIFF OMITTED] 43232.209

    [GRAPHIC] [TIFF OMITTED] 43232.210

    [GRAPHIC] [TIFF OMITTED] 43232.211

    [GRAPHIC] [TIFF OMITTED] 43232.212

    [GRAPHIC] [TIFF OMITTED] 43232.213

    [GRAPHIC] [TIFF OMITTED] 43232.214

    [GRAPHIC] [TIFF OMITTED] 43232.215

    [GRAPHIC] [TIFF OMITTED] 43232.216

    [GRAPHIC] [TIFF OMITTED] 43232.217

    [GRAPHIC] [TIFF OMITTED] 43232.218

    [GRAPHIC] [TIFF OMITTED] 43232.219

    [GRAPHIC] [TIFF OMITTED] 43232.220

    [GRAPHIC] [TIFF OMITTED] 43232.221

    [GRAPHIC] [TIFF OMITTED] 43232.222